The frequency of mail-away closings is increasing. In an industry, when buyer or seller conducts a real estate transaction in absentia, it is called a “mail away and have become increasingly popular, to the point where it is a rarity for buyer and seller ever to meet, ever to communicate directly, or ever to sit down together at the same closing table. If you are involved in a closing that requires the mailing of documents below are some tips that can help avoid delays.
Connecticut: Two witnesses required (one witness may be the notary)
Florida: Two witnesses required (one witness may be the notary)
Georgia: One witness required (can’t be the notary)
Louisiana: Two witnesses required (neither can be the notary)
South Carolina: Two witnesses required (one witness may be the notary).
If you're not sure, just call the phone number for your closing company, contact information is listed on the instruction page included in the loan package. if any questions arising during the signing, they would rather talk you through every little step than to re-do everything later because something was unclear.
There really is a reason!
As Notary Signing Agents, conducting mobile loan closings we often encounter The Statement of Information form, which is often found in the loan packages we print and courier to the borrowers for signatures. This form sparks up conversations which borrowers look to us for answers regarding their sensitive information & its purpose. We (Notaries) are left to answer questions related to the document to which we provide as much information as possible to put the customers at ease. Although our main role as Certified Notary Signing Agents is to Identify borrowers, witness their signatures & notarize affidavits, Deeds & Mortgages Whether it be a refi, sale, or purchase property, borrowers often expect us to know what they are signing & the purpose of certain documents, the Statement of Information is one of them. We (notaries) try to provide as much information as possible on the forms but sometimes it can be a little tricky.
I provide the following information regarding this form to my borrowers and point them to the right direction to where more information can be found ie *California Land Title Association their Loan, Title, or Escrow officer.
When a title company seeks to uncover matters affecting title to real property a completed Statement of Information is required for the title company to use to distinguish the buyers and sellers of real property from other similar names, in fact the new CAR Residential purchase agreement calls for a Statement of Information to be provided by the seller to the escrow holder within 7 days of acceptance. To help better understand this sensitive subject, the California Land Title Association has answered some of the questions most commonly asked about the Statement of Information. In searching titles to real property, judgments, bankruptcies, divorces, income-tax liens against persons with similar names may be encountered. These matters cloud the title to the property unless eliminated by information showing that the parties in the real-estate transaction are not the person(s) involved in these difficulties, considering California’s community property laws, something about the spouse, too, if married -- so that matters not directly affecting the borrowers may promptly be ignored, as all matters not directly affecting the property being searched.
What is a Statement of Information & What does it do?
A Statement of Information is a form routinely requested from the buyer, seller, and or borrower in a transaction where title insurance is sought. The completed form provides the title company with information needed to adequately examine documents to disregard matters which do not affect the property to be insured, matters which apply to some other person. Every day documents affecting real property – liens, court decrees, bankruptcies are recorded whenever a title company uncovers a recorded document in which the name is the same or like that of the buyer, seller or borrower in a title transaction, the company must ask, does this document affect the parties we are insuring? Because, if does it affects title to the property and would therefore, be listed as an exception from coverage under the title policy
A properly completed Statement of Information will allow the title company to differentiate between parties with the same or similar names when searching, documents recorded by name. This protects all parties involved and allows the title company to competently carry out its duties without unnecessary delay.
What types of information are requested in a Statement of Information?
The information requested may include, but is not limited to full name(s) last 4 digits of your Social Security number; driver’s license number; year of birth; date of marriage if applicable; any previous marriage(s) if applicable; residence(s) for the past 10 years and place(s) of employment for the past 10 years
What happens if a buyer, seller, or borrower fails to provide the requested statement of information?
At best failure to provide the requested Statement of Information will hinder the search and examination capabilities of the title company causing delay in the production of the title policy. At worst failure to provide the information requested could delay the close of escrow. Without a Statement of Information, it would be necessary for the title company to list exceptions from coverage judgments, liens or other matters which may affect the property to be insurance. Such exceptions would be unacceptable to most lenders whose interest must also be insured.
This information is meant for general information only and is not to be construed as legal, tax or investment advice. The information has been gathered from sources believed to be reliable. Situations may vary, therefore professional should be consulted.
Commercial Loan Closing
The one thing I love about being an Independent Notary is the variety.
I meet a variety of clients and perform a variety of notarizations, no two days are the same.
For example, I had the privilege of helping two local developers with the Commercial Loan Closing of the development of a Low Housing multifamily complex for a city called Lost Hills, in Kern County California, located west-northwest of Bakersfield where 75% of the population is engaged in agriculture. This particular complex would house the local farmworkers & their families who majority are low income. The gentlemen found me online through my AdWorks on google which is on 1st page placement.
This was a lengthy signing one that took about 3 hours to complete due to the number of documents that needed to be Notarized. Although I don’t know the exact purpose of each document, a separate journal entry had to be made per page per signer, which is a requirement according to California law.
Documents I Notarized
Tower Line Agreement
UCC Financing Statement
Construction DOT Assignment of Rents
Delivery Assurance Deed Of Trust
Regulatory & Declaration of Rest. Cov
Delivery Assurance Deed of trust Multifamily
Amended & Restated Agreement
Construction & Permanent Deed of Trust
Deed of Trust with Assignment of Rents
Deed of Trust
Assignment of Assumption
The amount of documents may seem small but we had 3 packages to do, Lender Copy, Title Copy and & Housing Authority Copy. We joked about how sore our hand was after this lengthy signing.
Independent Notary Public
Loan Application vs RESPA Signings
There are threads on social media discussing that we as Notary Signing Agents are not to be “doing” loan applications. It appears that a Signing Company told a notary that another notary got in trouble for conducting a Loan Application. That is correct, we are not supposed to be taking a loan application because we do not have an originator's license. (Title V of P.L. 110-289, the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (“SAFE Act”)
There is a big difference between taking a loan application and doing a RESPA signing (which is what most of us are being asked to do).
Loan Application; is the part where the loan originator gathers all the information needed from the borrowers in order to get the file into underwriting. The originator will ask the borrower everything that is on that 1003 loan application, enter it into their software system, and upload the credit report to show liabilities, discuss loan products, interest rates, and payment information with the borrower. The loan originator will then most likely upload all this information into some sort of underwriting software that is used by the lender and that in turn will generate a list of items the borrowers need to provide to the loan originator and underwriter in order for the file to close. The originator will then print out the RESPA documents that are to be signed by the borrowers. These RESPA documents are time sensitive as they need to be signed within 3 business days from credit being pulled.
RESPA signing; is where we (Notaries) come in. The loan originator will ask us to conduct the RESPA signing. We are not notarizing, or taking a loan application as that has already been done by the loan originator (not the notarizing part) We are just watching the borrowers sign their RESPA documents and gather up the documents such as bank statements, pay stubs, divorce decree, W-2s, tax returns, insurance information, homeowner's association information, letters of explanation, etc. Whatever underwriting software told the loan officer that would be needed in order to approve the loan. We (Notaries) are not there to give advice, sell a product, we are simply there to watch them sign and gather up the documents needed by the loan originator to give to the underwriter.
Knowing the difference between a Loan application vs a RESPA signing is important so that as Notary Signing Agents, we can make sure we are not doing anything illegal & therefore can expand on the services we provide without worrying about Unlawful Practice of Law or worry.
IMO: we (NSA/Notaries) are Independent contractors not employees, Independent Contractors NOT Loan Originators
Let me facilitate the signing of the RESPA closing documents
Notaries are sometimes asked to “Notarize”, a Copy of a Passport, Green Card, Driver License, Utility Bills, and similar documents for legal process, these requests are routinely refused because not all states authorize Notaries to “Notarize” and not all documents are eligible for a copy certification / attestation by a Notary.
The following will help clarify some of these requests:
Copy Certification/Attestation is different from notorial acts involving a signed document, an oath is not administered to take an acknowledgement from anyone, instead the custodial of record makes the photocopy of the document & or the Notary compares the original to the copy and then certifies or attest that the photocopy is a true copy of the original. *note: only certain states authorize copy certification/attestation of the comparison method. (check with the state’s SOS) . When a Notary makes an attested copy of a document, he/she is not guaranteeing, authenticity of the original document, its contents, or its effects. The Notary is simply stating that the photocopy is a “true” and complete copy of the of the original document presented. The Notary’s certification is made in a notorial certificate worded for that exact purpose.
Process: Original document must be presented for comparison make the witness take photocopy of the document. If the copy has already been made then the original must be presented for comparison. You cannot take some one else’s word that a photocopy is a “true”, not matter how trustworthy that person may be. (depending on the state) A certified copy issued by the official document custodian (example: a certified copy of a marriage record, birth certificate etc. Issued by the county clerk) is NOT an original document – it is s copy. A Notorial certificate is completed for copy attestation or Copy Certification by Custodian (depending on the state) . It is recommended that a Notary Journal entry be made as best practice.
Most commonly presented documents that the Notary might encounter:
Attestation/Certification of Copy by Document Custodian.
Certification of Copy by Document Custodian What if your authorized notorial duties do not include making certified or attested copies of documents? The Document custodian may wish to swear/affirm that a copy he or she made is of an original document is a true copy. The document custodian would make a written affidavit(statement) that a true photocopy was created from the original document and the Notary would take the custodian’s oath/affirmation bout the truth of the affidavit and complete a jurat. This procedure places the responsibility about the photocopies document on the client not the notary, and should be handled responsibly.
Sample Affidavit: (California)
COPY CERTIFICATION BY DOCUMENT CUSTODIAN
I, _______________________________________________________________[name of custodian of original document], hereby swear (or affirm) that the attached reproduction of ___________________________________ [description of original document] is a true, correct and complete photocopy of a document in my possession.
Under penalty of perjury under the laws of the state of California, I attest to the truthfulness, accuracy, and validity of the forgoing statement.
Custodian’s Address: ______________________________________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ________________ Subscribed and sworn to (or affirmed) before me on __________________, 20_____, by ________________________________________________________________________ proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
As Notaries, we cannot speculate that the copy certification affidavit will automatically be accepted by the receiving party, nor can we counsel to whether a relying party should accept this process, the most we can do is ask the document custodian if he/she wishes to make an affidavit about the trueness of the photocopy, show him/her the affidavit language if available, and let the client choose what to do. If the document custodian has any questions about the advisability or effects of the affidavit, custodian of records, will have to consult an attorney or another party relying on the transaction.
Anxiety in undocumented Immigrants is rising. The uncertainty of what may happen is weighing heavily on the minds of many undocumented immigrants in California, particularly in the San Joaquin area, where a large population of the undocumented Immigrants are farm laborer’s. Thus, requests for Guardianship, POA’s, Affidavits & Notarized Letters for their minor children has risen, In preparation of “just in case”
According the California Courts parents can agree to let a family member or a trusted individual the permission to take care of their child(ren) without having to go to court. They can sign a Power of Attorney for a Minor Child in front of a Notary that gives “physical custody” of the child which allows the caregiver to make decisions about the child’s education, and medical care, & health insurance. This Power of Attorney can be cancelled at any time. The form is called Appointment of Short-Term Guardian for Minor Children and Durable Healthcare Power of Attorney & is an 8-page document which includes a Revocation of Short-Term Guardianship, which terminates the POA. If the child will remain in California, the person (caregiver) can complete a Caregiver’s Authorization Affidavit (form can be found in the California Courts Self-Help Center website). If the caregiver, is a relative the form lets him or her enroll the child in school and get medical care. If the caregiver is NOT a relative the form still lets them enroll the minor is school but they are only authorized to make medical care decisions that are school related (like immunizations, or physical exams required for school enrollment)
Some schools and medical facilities accept the Caregiver Authorization, or Notarized POA it is possible that some will require a legal guardianship court order instead. The parents can cancel these forms and take the child even if it’s not safe for the minor.
As a Notary Public, however, my primary role is to serve the public as an impartial witness, when important documents are signed, and cannot provide legal advice to my customers. However, this does not limit the amount of information I can provide to my customers, as this information is free & anyone in the public can access it.
California Family Code sections 6550-6552 and probate code sections 2353 & 2356
California Courts Self Help Website.
Trust is important in modern society. In legal matters, causation is the casual relationship between conduct and result, in which business dealings between strangers are the norm rather than the exception.
Trust enables sensitive documents from deeds for real estate property to contracts promising essential services, to be exchanged with confidence. Without it the consequence would be disorder, and increased threats of fraud.
Even though we must trust strangers to conduct business, knowing as much about the transacting parties as possible to assure that its agreements and promises are made reliably is important therefore, a process that enables confidence and engenders trust, has increased, it is a reliant system that maintains the rule of law, preservers the integrity of an agreement, and ensures the authenticity of a transaction. This process is in place and working well, though it is often misunderstood and unfairly criticized. That process is called Notarization and is essential and more relevant than ever.
Notarization: Why is it important?
Notarization dates back thousands of years, the process has represented trust, assurance and legitimacy of official documents backed by a governing body.
Although numerous documents are freely exchanged in our society, individuals and organizations require greater guarantees of trustworthiness and accuracy relating to certain agreements.
Notarization in-fixes a written document with unspoken intention and commitment, providing a secure solution that gives trust a material form. It is the official certifying process that renders documents worthy of the public trust, and offers assurance that a document is authentic, that its signature is genuine and that a signer acted willingly and intended the terms of the document to be in full force and effect.
An individual's acceptance, consent or signature taken separately or even together cannot deliver the security and certainty that notarization provides. Individuals entering in to agreements personally appear before an impartial and unbiased Notary Public, are identified as the person they claim to be and acknowledge that they signed voluntarily.
Importantly the resulting notarized document becomes distinguishable from any other because of the seal and official, signature of the Notary Public.
Different Notarial acts or Notarization's
Acknowledgment: Is generally performed on documents controlling or conveying ownership of assets; example of those documents are: real estate property deeds, legal documents such as powers of attorney and sometimes trust and wills. The signer must appear in person at the time of Notarization to be positive identified and to declare that the signature on the document is his or her own, that it was willingly made and that the provisions in the document are intended to take effect as written. This notarial act is authorized in 50 states and jurisdictions.
Jurat: Is typically performed on documents that are critical to the operation of the court system. Such documents include affidavits and depositions. For a jurat, the signer must appear in person at the time of Notarization to sign the document, and to recite aloud an oath or affirmation promising that the statements in the documents are true. A person who takes an oath or affirmation in connection with an official proceeding may be prosecuted for perjury should he or she fail to be truthful.
Certified Copies: The copy certification is performed to confirm that a reproduction of an original document is true, exact and complete. Examples of those documents are: college degrees, passports and other documents which cannot be copy-certified by a record office such as a bureau of vital statistics or county recorder's office . This notarization is not authorized in every state but in the jurisdiction where it is allowed, may be executed only with certain original documents.
Each state has its own laws governing the performance of Notorial acts.
The Notary Public: Every Notarization is performed by a Notary Public. Notaries must apply to a state agency typically the secretary of state. The role of a notary Public cannot be replicated by individuals in the general public. Fewer other individuals have the requisite training experience and impartiality necessary to positively verify the identity of a signer, assure willingness and confirm the act of acknowledgement or administration of an oath or affirmation. This is why Notaries should receive no personal benefit from the transactions they notarize. They must also never refuse to serve a person due to race , nationality, religion, politics, & sexual orientation. Impartiality also means that Notaries must operate independently and resist improper or illegal requests or demands of customers, friends or family members.
Notaries are accountable for following the law and have unlimited financial liability for any harm caused another person by their negligence or intentional misconduct. Notary Laws in most states requires that document signers appear in person before the Notary at the time of Notarization to authenticate their identity and their intention that a particular document or transaction to be in full force and effect. Yet this is the law that Notaries are most often pressed to violate.
Today, Notaries are now being used to verify the identity of individuals in a variety of functions of situations, even for electronic transactions or communications in which confirmation of an individual's identity and the authenticity of an accompanying electronic signature must be established , why? because of the Notary's familiarity with verifying identity , as well as for their impartiality,
Notaries: Ensurers of Trust for Today's Business
The Notarial act is the foundation of trust and the Notaries who perform them are society's guarantors of authenticity and integrity.
Customer FAQ's and legal advice vs legal information
Legal advice is when an attorney applies his or her legal expertise to your specific fact situation, and tells you how you should proceed. This includes, but is not limited to:
⦁ Representing a person before a court or other government institution
⦁ Creates duties or responsibilities for the person offering advice
⦁ Affects the rights or responsibilities of the person seeking advice
A notary public is prohibited from practicing law, unless the notary public is also a licensed California attorney. (California Government Code section 8214.1(g); California Business and Professions Code section 6215.)
can be given by anyone who is knowledgeable on the law. It is simply a statement of what the law is, without any application to your particular situation, leaving up to you the decision of how to proceed.
What should I do with my Advanced Healthcare Directive Now That I've Had It Notarized?
California maintains an Advance Directive Registry. By filing your advance directive with the registry, where the health care provider and loved ones may be able to find a copy of the directive in the event the patient is unable to provide one. More about the registry, including instructions on how to file your advance directive, at http://www.sos.ca.gov/ahcdr/forms.htm.
Advanced Healthcare Directives PROBATE CODE SECTION 4700-4701
Should I record my power of attorney just in case?
Power of attorney requirements vary by state, but typically are signed by the principal and need to be witnessed and/or acknowledged before a notary public. Usually, powers of attorney do not need to be recorded. However, powers of attorney dealing with the sale and purchase of real estate must be recorded.
In California, a power of attorney must either be acknowledged in front of a notary or signed by two witnesses. While either method of validation will work, consider doing both. By signing in front of a notary, you expel any doubt as to the validity of the principal's signature. Also, by having two witnesses sign the power of attorney, you are also creating parties who can testify as to the validity of the document.
A natural person having the capacity to contract may execute a power of attorney. PROBATE CODE SECTION 4120-4130 4120.
What is a Domestic Partnership? Wait why do I have to fill this out, we are not gay! (this comes up during a mortgage loan signing)
⦁ A domestic partnership is an interpersonal relationship between two individuals who live together and share a common domestic life but are not married (to each other or to anyone else).
⦁ Registered domestic partners have the same rights, protections, and benefits, and same responsibilities, obligations, and duties , as spouses.” Cal. Fam. Code § 297.5(a). These protections apply as of the date a couple registered as domestic partners with the state of California.
More info can be found at http://www.nclrights.org/
Declaration of Domestic Partnership From Can be found in the California Secretary Of State website http://www.sos.ca.gov/registries/domestic-partners-registry/
Can you provide or help me draft a Grant Deed, Power of Attorney or Will?
A notary public is prohibited from practicing law, unless the notary public is also a licensed California attorney.
(California Government Code section 8214.1(g); California Business and Professions Code section 6215.)
Legal forms and documents can be found here http://saclaw.org/legal-forms/
Customer service is important, and therefore helping them understand the difference of what a notary can and cannot do is part of good customer service and providing them with the right information is also key to keeping your customers happy !
Learn the rules. Each facility has its own rules concerning marriage. Talk with the chaplain, warden or other appropriate official
1. You will need to obtain an “Inability to Appear” package from the local County Clerk’s Office.
2. The County Clerk’s Office will require an official “Notice of Incarcerated Individual” (Satisfactory Proof of incarceration)
If for sufficient reason, either or both of the parties to be married are physically unable to appear in person before the county clerk, a confidential marriage license may be issued by the county clerk to the person solemnizing the marriage if:
⦁ The signature of any party to be married who is unable to appear in person before the county clerk is authenticated by a notary public , prior to the county clerk issuing the confidential marriage license
3. Contact the prison chaplain, warden or other appropriate official, who will make arrangements, during normal facility visiting times, for the inmate to sign an “Affidavit of Inability to Appear and Request for Issuance of a Marriage License” in the presence a notary.
⦁ Most facilities have a list of approved Notaries ask the litigation coordinator to provide the Notary's information.
⦁ Some facilities DO not keep an approved Notary List & you can hire any outside Mobile or Traveling Notary to coordinate the appointment .
4. The intended spouse and Marriage Officiant must go to the County Clerk’s Office to take an oath and receive a marriage license. The Marriage Officiant will need to stand in for inmate during this process.
5. After receiving a marriage license, the intended spouse will need to contact the prison chaplain, warden or other appropriate official of the facility where the inmate is housed to schedule the marriage ceremony during normal facility visiting times
6. The intended spouse, Marriage Officiant, witness and/or interpreter will be searched upon entering the facility
A Structured Settlement can add certainty to a claimant’s financial situation by establishing payments that are guaranteed and not impacted by market fluctuations or downturns in the economy.
What is a Structured Settlement?: When someone is injured and a lawsuit results, often, that lawsuit is settled and both parties agree on compensation. This compensation is often paid out over time in regular payments as a structured settlement. Structured Settlements is a negotiated insurance of financial arrangement where the claimant agrees to resolve a personal injury claim by receiving some part of the settlement in the form of periodic payments on an agreed schedule. Victim agrees to receive periodic payments over the long-term rather than a lump sum up front. It is often designed to provide victims who are sick or have been hurt with a steady stream of future income for life.
Most Common Documents in a Structured Settlement or Sale of a Structured Settlement which need to be Notarized
Transfer" means any sale, assignment, pledge, hypothecation, or other form of alienation or encumbrance made for consideration.
(o) "Transfer agreement" means the agreement providing for the transfer, and any other document used to effectuate the transfer, from the payee to the transferee of structured settlement payment rights of a structured settlement agreement.
"Structured settlement agreement" means an arrangement for periodic payment of damages established by settlement or judgment in resolution of a tort claim in which the payment of the judgment or award is paid in whole, or in part, in periodic tax-free payments rather than a lump-sum payment.
Agreement Sale Structured Settlement: See “Transfer Agreement”
Irrevocable Designation of Transferee as Beneficiary:
"Interested parties" means, with respect to a structured settlement agreement, the payee, the payee's attorney, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee's death, the annuity issuer, the structured settlement obligator, and any other party who has continuing rights or obligations under the structured settlement
Agreement. If the designated beneficiary is a minor, the beneficiary's parent or guardian shall be an interested party. “Dependents" include the payee's spouse and minor children and all other family members and other persons for whom the payee is legally obligated to provide support, including alimony.
Authorization to Release Info: Regarding liens, judgments in connection to any dependent as to child support etc…
Authorization to Release Info: former client, of payee, the 'payee,' has entered into a contract with to transfer and assign certain future structured settlement payment rights.
Funding Instructions: Funds provided in the Purchase Price as defined in the sale agreement.
Return of Non Assigned Payments: Future Pass thru Payment Issuance (Check or ACH)
A Notary Public can facilitate the closing of the documents
Definition Terms Reference:
CA INSURANCE CODE SECTION 10134-10139.5
GOVERNMENT CODE SECTION 984