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1 person liked this post.
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macdeux
California
79 Posts |
Posted - 01/19/2011 : 11:22:29 PM
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Although dated, I found this thread extremely helpful. Thank you to all the contributors for bringing to light things that many may not have known otherwise. Although I certainly understand anyone's frustration for not being compensated for fulfilling their part of an agreement, I would encourage everyone to really take heed of this thread prior to posting and/or issuing demand letters (such as the one listed via the link).
I've often turned to the threads to gain insight on companies I'm not familiar with and have found them useful. I know experiences of everyone run the spectrum of good to bad, but it is helpful to know ahead of time when someone hasn't been paid for a signing and their experience in resolution, if any; especially when it appears obvious the signing agent provided due diligence in their assignment.
Having said that, this does bring to light questions on what can be shared. Would it be right to assume that as long as false information is not transmitted, and no mention of collections procedures being started, that one can be fairly liberal with details of their experience as long as it's the truth? Or would relaying the facts such as "60 days past due" (for example) be sufficient to get your point across without crossing the legal boundaries?
Curious to know others' thoughts.
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PWinFL
Florida
469 Posts |
Posted - 12/30/2009 : 11:41:54 AM
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Agreed.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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Lisa T.
California
391 Posts |
Posted - 12/30/2009 : 10:50:34 AM
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Paul, I'll agree that I could be mistaken. This topic has good points on both sides of the discussion - regardless of who's right or wrong. Each side presents itself well. |
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PWinFL
Florida
469 Posts |
Posted - 12/30/2009 : 05:35:06 AM
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quote: Originally posted by Lisa T.
Until the money has reached the Notary for their services, the borrower hasn't paid anything to the Notary - therefore, they are responsible to the Notary and can be collected from.
I believe you are mistaken. Typically, the borrower has no obligation to the notary and does not pay the notary for their services. The obligation is from the signing service and/or title company (or whoever hires the notary) to the notary. The borrowers obligations are clearly stated within the loan documents, e.g., HUD, Third Party Affiliations, etc. and the obligation is to whoever is doing the settlement, usually the title or settlement company. Distribution of the funds is not the borrower's responsibility either. Again, this responsibility belongs to the title or settlement company in most cases.
Therefore, it is immaterial when the debt is considered to be paid, since the borrower has met their obligations of payment when the loan closes, regardless of who gets paid in the end.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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Lisa T.
California
391 Posts |
Posted - 12/29/2009 : 5:57:18 PM
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Question: Is a debt paid because you sent the funds or because it was received by the one who rendered services? In other words, (in the days before online billpay) if you mail your gas company payment and the post office loses the envelope, is it paid? You can argue with the gas company rep that you mailed the payment until you're blue, but if their office has not received your payment, your bill is not paid and your gas will be shut off.
Secondly, it has been said a couple of times that the attorney most likely stated that the borrower is the last to be sued, simply because a person can sue anyone. A person with more than ten brain cells doesn't waste their time suing anyone. They don't include those who are not a party to the transaction or from whom they don't believe they can collect. He/she knows that no attorney (worth their salt) suggests that a claim can be made against someone unless that someone is a direct party to the transaction and it can be reasonably concluded that this someone can be collected from. Therefore, it is ridiculous to even make the statement. Yes, anyone can sue anyone but what we can do and what we will do are two different things.
Those with less than ten brain cells will sue anyone. Those with more than ten brain cells won't waste time and resources doing so. If the attorney suggests that the borrower is last to be sued, then the borrower can be collected from. Until the money has reached the Notary for their services, the borrower hasn't paid anything to the Notary - therefore, they are responsible to the Notary and can be collected from.
Since when are you only responsible if a contract is involved? |
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Renee
Michigan
549 Posts |
Posted - 12/21/2009 : 10:53:19 AM
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Ok, seriously, this is my last play ...
The borrower is not OUR debtor. He is also an individual and not a business entity in that transaction - and that part matters to the laws of debt collection. If you see the link or Google debt collection laws, you will see (as per the link I provided a few days ago):
In your small business debt collection laws will eventually become important, as your debt grows and some clients do not pay.
To collect small business debts legally, you must first send a written notice that collections have begun, within five days of first contacting the debtor for collections (for instance, within five days of calling on the telephone). The letter must include dispute instructions.
Small Business Debt Collection Laws Forbidden Practices
* Collect any amount beyond the actual debt, unless you really can do so legally.
* Continue collections on a debt if the debtor has disputed the debt, unless you provide the debtor with written proof.
* Continue contacting the debtor if within 30 days of first contact, the debtor disputes the debt.
* Credit a payment the debtor has made to a non-disputed debt to a debt the debtor has disputed.
* Deposit a post-dated check before the post-date.
Small Business Debt Collections Laws: What You Can't Say
* Give a false name.
* You are an attorney or government representative, if you are not.
* You have an attorney working for you or that you are going to assign the case to an attorney, if you really do not.
* The debtor has committed a crime, unless you are 100% sure they have.
* You work for a credit bureau, if you really do not.
* The debt is more or less money than it actually is.
* You are sending or have sent legal forms when you really did not.
* You are sending or have sent papers that are not legal forms, if they really are legal forms.
* The debtor will be arrested--no one is arrested for nonpayment of debts anymore.
* You will seize, garnish, attach, or sell the debtor's property or wages, if you do not really intend to or cannot legally do so (and unless the debt is secured with collateral, you probably cannot).
* You will sue or take other legal action, if you do not really intend to, or are not legally able to do so.
Small Business Debt Collection Laws Forbidden Third-Party Disclosures
Never:
* Give any credit-related information that is not 100% accurate.
* Tell anyone other than the debtor that you are collecting a debt.
* Telephone any number other than the debtor's more than once.
Small Business Debt Collection Phone Calls
Never:
* Call after 9 pm or before 8 am.
* Forget to give your name and your company's name.
* Call repeatedly or in a way intended to annoy.
* Make a collect call.
* Make any threats.
* Use profane or obscene language.
* Leave a message that reveals this is a debt collection.
Small Business Debt Collection Mailing
Never send:
* Postcards.
* Envelopes or mailings with any reference to debt collection on the exterior.
* Anything that looks like an official, legal, or government document, if it is not.
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LindaH
Florida
1754 Posts |
Posted - 12/21/2009 : 10:10:50 AM
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"the borrower is the primary debtor (in my opinion) as called for within the closing documents, and the amount of the debt to the notary has in fact been disclosed to the borrower"
True Vince....BUT....that debtor has paid his debt....so he's no longer a debtor....it now falls to the contractual obligation of the SS/TC....and is why a claim against the homeowner would not prevail in court.
MHO
Linda www.notarydepot.com/notary/lindah http://www.notary.net/websites/LindaHubbell
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vince
Kansas
324 Posts |
Posted - 12/21/2009 : 09:43:53 AM
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Thank you Linda. You clearly state why the borrower should not be approached for payment. Guess I’m guilty of heckling Renee over her statement, “The law says you can't disclose a "debt" to anyone BUT the debtor, they're certainly not saying you can't disclose a "fee" on the Hud”. Because, in a classic sense, the borrower is the primary debtor (in my opinion) as called for within the closing documents, and the amount of the debt to the notary has in fact been disclosed to the borrower. But, very importantly, they do not have a direct contractual relationship or line of authority in determining who was hired for the closing and should be able to assume that the debt will be satisfied upon the completion of the documents. |
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LindaH
Florida
1754 Posts |
Posted - 12/21/2009 : 07:04:22 AM
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My .02 FWIW
"the borrower would not be considered a debtor within a court of law for unpaid notary services?"
No..he would not - one can't be a debtor if they've paid the debt and pursuant to the HUD, any fees for "Notary Services" were paid at disbursement by the Settlement Agent, who signs the certification that (s)he DID in fact disburse the funds in accordance with the HUD...providing the loan funds, the borrower has paid their fees. Borrower can be a named defendant (you can name anyone you want) but it won't stand - unless borrower hires the notary directly, claims for unpaid notary fees are made against the SS or TC - the ones who directly contracted the notary and agreed to pay their fee.
As for disclosing it to the borrower, why it would be disclosed to them at all is unclear to me - as I said, they've already paid their bill in the all-inclusive disbursements on the HUD so why chase a dead horse? We don't have lien rights against the property - this is state-specific as each state's mechanics' lien laws vary, but I don't believe the ML laws were created to address unpaid notaries. Further, again state-specific, but Mechanics' Liens require court approval - I don't see any judge approving the lien based on unpaid notary fees. Our claim for unpaid fees goes directly to the party that hired us - and UP the chain to those that preceded them and hired THEM.
MHO
Linda www.notarydepot.com/notary/lindah http://www.notary.net/websites/LindaHubbell
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Renee
Michigan
549 Posts |
Posted - 12/21/2009 : 03:28:28 AM
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[/quote] I agree, we do not agree on what was said by the attorney. So, just to clarify your stated opinions Renee, are you saying that the borrower would not be considered a debtor within a court of law for unpaid notary services? Further, that since he is not a debtor (in your opinion) that you cannot disclose an unpaid debt to him/her? [/quote]
Gosh, Vince, how can I say what a "court of law" would say? I think I've clarified myself to pieces and sourced enough stuff. I'm started to feel hammered, not really sure what exactly you're after. Can we play something else? |
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vince
Kansas
324 Posts |
Posted - 12/20/2009 : 11:42:44 AM
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quote: Originally posted by Renee
I think, Vince, that we aren't getting the same message from this attorney's quoted opinion. I agree with him - it's "strictly contract law". When he states "person getting the loan is LAST to be sued.", my take is that he's merely acknowledging the fact that you can file a lawsuit against anyone on the planet if you want to, you don't FIRST have to prove it's valid, justified, etc.; that's the part where the judge earns his paycheck.
The borrower is not contracting me. I have absolutely nothing to use to back up a claim that HE owes me money.
As for disclosing a debt to someone other than the debtor - the laws are plenty & available; additionally there are myriad concerns as I previously noted.
I agree, we do not agree on what was said by the attorney. So, just to clarify your stated opinions Renee, are you saying that the borrower would not be considered a debtor within a court of law for unpaid notary services? Further, that since he is not a debtor (in your opinion) that you cannot disclose an unpaid debt to him/her? |
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Renee
Michigan
549 Posts |
Posted - 12/20/2009 : 05:12:02 AM
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I think, Vince, that we aren't getting the same message from this attorney's quoted opinion. I agree with him - it's "strictly contract law". When he states "person getting the loan is LAST to be sued.", my take is that he's merely acknowledging the fact that you can file a lawsuit against anyone on the planet if you want to, you don't FIRST have to prove it's valid, justified, etc.; that's the part where the judge earns his paycheck.
The borrower is not contracting me. I have absolutely nothing to use to back up a claim that HE owes me money.
As for disclosing a debt to someone other than the debtor - the laws are plenty & available; additionally there are myriad concerns as I previously noted.
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vince
Kansas
324 Posts |
Posted - 12/19/2009 : 08:04:56 AM
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quote: Originally posted by Renee
To utilize tort law in seeking damages from the borrower would require showing or proving that they were responsible for an act that caused you harm. Lacking something – anything – that shows a borrower’s responsibility somehow connected to your client’s breach of contract, I maintain that we have no right to pursue payment from them.
The HUD1 is a RESPA “Disclosure” – it is not a “contract”, nor does it bind the borrower to anything. It discloses information to him, and I would opine that in/of itself, this fails to show any responsibility of the borrower’s, in your client’s breach of contract to pay for services. The Settlement Agent IS, by contract with the Lender & expressed in the Closing Instructions (in addition to Fed/State laws applicable), responsible for disbursing funds as disclosed on the HUD1. If your name and your fee are not specified as a line-item, it would not (of itself) even provide a right to pursue the Settlement Agent and again I contend this document isn’t providing us with any right to pursue the borrower.
The GLBA, and the Privacy Policies of the Lender & Settlement Agent as they extend & apply to your services under contract pose some real considerations, and there are countless points which bring any contact with the borrower (aside from what is necessary to provide our services) into question.
The document Vince refers to re: the borrower’s agreement to responsibility for your service fee in the event the loan does not fund – this flies in the face of the TILA. Having been a compliance officer, I contend the document attempts to fly ‘under the radar’ of both the lender and the Feds, and would love to see someone try and enforce it against a borrower who knows their rights.
The borrower is an individual consumer (relative to the transaction, although rarely a consumer of our services) and has protections against the suggested actions, endowed by the FTC, the CPA and the FDCPA relative to his privacy and the suggested attempts at debt collection – all of which ‘taunt’ the question of any right we have in contact or attempts at debt collection. From there you move to the individual state’s laws, many of which actually go further than the Fed Regs (and CA is one of those).
Lastly, there are the laws I quoted relative to Small Business Debt Collection …
These are the many reasons I hold the opinion that we have “no right” to contact/pursue anything with the borrower – and further, no legal right to threaten to do so (there are laws against empty or invalid threats, but oh boy, not going there!)
So, just to clarify your stated opinions Renee, are you saying that the borrower would not be considered a debtor within a court of law for unpaid notary services (regardless of what Lisa's attorney friend indicated)? Further, that since he is not a debtor (in your opinion) that you cannot disclose an unpaid debt to him/her? |
Edited by - vince on 12/19/2009 08:06:23 AM |
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Renee
Michigan
549 Posts |
Posted - 12/19/2009 : 03:37:25 AM
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To utilize tort law in seeking damages from the borrower would require showing or proving that they were responsible for an act that caused you harm. Lacking something – anything – that shows a borrower’s responsibility somehow connected to your client’s breach of contract, I maintain that we have no right to pursue payment from them.
The HUD1 is a RESPA “Disclosure” – it is not a “contract”, nor does it bind the borrower to anything. It discloses information to him, and I would opine that in/of itself, this fails to show any responsibility of the borrower’s, in your client’s breach of contract to pay for services. The Settlement Agent IS, by contract with the Lender & expressed in the Closing Instructions (in addition to Fed/State laws applicable), responsible for disbursing funds as disclosed on the HUD1. If your name and your fee are not specified as a line-item, it would not (of itself) even provide a right to pursue the Settlement Agent and again I contend this document isn’t providing us with any right to pursue the borrower.
The GLBA, and the Privacy Policies of the Lender & Settlement Agent as they extend & apply to your services under contract pose some real considerations, and there are countless points which bring any contact with the borrower (aside from what is necessary to provide our services) into question.
The document Vince refers to re: the borrower’s agreement to responsibility for your service fee in the event the loan does not fund – this flies in the face of the TILA. Having been a compliance officer, I contend the document attempts to fly ‘under the radar’ of both the lender and the Feds, and would love to see someone try and enforce it against a borrower who knows their rights.
The borrower is an individual consumer (relative to the transaction, although rarely a consumer of our services) and has protections against the suggested actions, endowed by the FTC, the CPA and the FDCPA relative to his privacy and the suggested attempts at debt collection – all of which ‘taunt’ the question of any right we have in contact or attempts at debt collection. From there you move to the individual state’s laws, many of which actually go further than the Fed Regs (and CA is one of those).
Lastly, there are the laws I quoted relative to Small Business Debt Collection …
These are the many reasons I hold the opinion that we have “no right” to contact/pursue anything with the borrower – and further, no legal right to threaten to do so (there are laws against empty or invalid threats, but oh boy, not going there!)
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Lisa T.
California
391 Posts |
Posted - 12/18/2009 : 8:07:31 PM
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Vince, I think your interpretation is reasonable. |
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vince
Kansas
324 Posts |
Posted - 12/18/2009 : 7:53:13 PM
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quote: Originally posted by Lisa T.
[blue]The landscaper situation is COMPLETELY different and the laws are completely different. Yours is stictly contract law from what I can see. Person getting the loan is last to be sued in my opinion.
So, if the borrower is the last to be sued, that would seem to be "the remedy of last resort." If the title company, lender, signing service and so on have not stepped forward to pay the notary - then apparently your "attorney associate" would agree that the borrower may be approached for payment? Is that a reasonable interpretation?
That would seem to support those signing services that would go so far as to include a statement for the borrower to acknowledge that they may be held accountable for notary payment if the loan does not fund.
Still, back to the original idea, the idea of approaching a borrower for payment does not fit my business plan (unless the borrower was the hiring entity). If it is intended as a threat, I’d be even less inclined to use it because I would not be willing to follow through with the threat. So, I would revise the prototype letter to fit what I am willing to do. Years ago a respected mentor advised that in the business world, it is better not to threaten another unless you were willing and had the means to proceed with the action. Reasons for that could be an entire new thread. |
Edited by - vince on 12/18/2009 7:54:52 PM |
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Lisa T.
California
391 Posts |
Posted - 12/18/2009 : 7:48:46 PM
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Personally, I would not sue the borrower or even mention them in my demand letter. After exhausting all other legal avenues, I'd just write off the fee as a loss and, of course, never work with that company again. I would make sure to share the facts, details, and circumstances of my experience with other Notaries on the forums. |
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PWinFL
Florida
469 Posts |
Posted - 12/18/2009 : 6:49:19 PM
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In my opinion, any suit brought against the borrower by a notary signing agent for non-payment of their fee, would be summarily dismissed. This opinion is based on my understanding of contract law. This is not to say that you can't sue the borrower, just that I think it would be an empty suit.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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Lisa T.
California
391 Posts |
Posted - 12/18/2009 : 5:58:38 PM
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I believe I stated that I did relay the TC/SS/Notary scenario to the attorneys and here's one response, though it still does not eliminate the borrower:
BUT - lien law applies to very limited areas of property improvement. You - not to belittle but - do not improve property. Your situation is strictly contractual and the person who is getting their docs notarized is not hiring you. There are so many people benefiting in this scenario - TC would not get commission without notary. RE agent gets no commission without notary, mortgage broker etc. The landscaper situation is COMPLETELY different and the laws are completely different. Yours is stictly contract law from what I can see. Person getting the loan is last to be sued in my opinion. Interesting. How much work do you get from SS?
Notice what he did NOT say. We could disagree back and forth until the cows come home. To make a blanket statement saying Notaries have no right to go after the borrower for their fee is incorrect, which is what I addressed. To choose not to go after the borrower is an individual choice. |
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PWinFL
Florida
469 Posts |
Posted - 12/18/2009 : 4:08:16 PM
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I agree with Renee that your analogy isn't germane to the situation. What you asked is about a homeowner contracting for home improvements. That's a big difference than a homeowner refinancing his property (not considered home improvement so mechanics liens are not possible). The homeowner does not contract with the title company in most situations. Why not simply state the exact same scenario to your attorney colleague that was posed to us? Print out the postings and let him make his opinion based on the same details we have. Can't compare apples and oranges.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
Edited by - PWinFL on 12/18/2009 4:10:07 PM |
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Lisa T.
California
391 Posts |
Posted - 12/18/2009 : 3:12:45 PM
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I did not seek out the R.E. attorney. He happens to be one of several attorneys I network with. What difference does the transaction make, Renee? The principle and gist of the analogy is the same - middleman does not pay subcontractor, who's ultimately responsible? I just used the landscaping scenario because it seemed simpler. I did give both attorneys the real estate transaction, mentioning the forum discussion. If they give another response, I will share that. Here's the response from the other attorney, who is a general practicing attorney:
Is this for a paralegal exam because it is very complicated. Involves mechanics lien law, sub contractor law, notice requirements, agency not to mention contract law and principles of equity. Bottom line, David can sue John for the improvements and benefits to the yard. May even have a right to lien the property if John knew David was working and John directed David during the process of landscaping. Mary may be considered an agent for John and was acting as such agent. Need to see the contract between Mary and David to see if other remedies. John may then have to sue Mary for any money David collects from John. Good luck.
Your personal choice to not contact the borrower is understandable. I most likely would not contact the borrower either. However, you made a blanket statement to Jeremy regarding his sample demand letter, stating "we would have no right to contact the borrower". That is what I was addressing. Choosing not to contact the borrower is one thing, but no right to contact the borrower is quite another. JMHO |
Edited by - Lisa T. on 12/18/2009 3:16:07 PM |
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Renee
Michigan
549 Posts |
Posted - 12/18/2009 : 2:08:58 PM
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I don't know why you'd seek out an Atty who specializes in RE transactions, and then analogize the situation into a non-real estate transaction? - why didn't you just give him the specifics?
Again, I stand on what the law says and what is standard OP - the borrower did not contract with me, therefore he is not indebted to me. Definitely not an avenue I would ever go down. |
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vince
Kansas
324 Posts |
Posted - 12/18/2009 : 1:18:23 PM
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quote: Originally posted by Renee
Well, I'm confused (nothing new there!) I didn't raise any fee disclosure questions.
The law says you can't disclose a "debt" to anyone BUT the debtor, they're certainly not saying you can't disclose a "fee" on the Hud.
The fee for service to the borrower has been agreed to by the borrower on the HUD - can the borrower then be considered a debtor? |
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Lisa T.
California
391 Posts |
Posted - 12/18/2009 : 11:49:12 AM
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Here's the response from the attorney. He is a real estate attorney who has his R.E. brokers license. First is my scenario and his answer in blue:
I have a legal question to ask: Let's say John calls Mary and says "I need a landscaper for my yard, please find one and I'll pay you - I'll give you enough money for your finders fee and to pay the landscaper. Mary says "Okay". So John has a contract with Mary to find a landscaper, plus pay the landscaper. John gives Mary the money. Mary finds a landscaper - David - and they create a contract. David will be working in John's yard and once he's done, Mary will pay David an agreed upon fee for his services.
David does a great job on John's yard, but when it comes time to get paid by Mary, Mary has secretly moved to Brazil - never having paid David for the landscaping work in John's yard. Can David then go to John and demand to be paid because David completed the work for John's yard - even though David's contract is actually with Mary? Can David also collect from the person who benefitted from his work even though they do not have a formal contract? Thank you for your answer!
Lisa -- Let's make things really complicated: Lien Law Requirements You state that David is a "Landscaper" If he is doing work that requires a landscaper's contractor's license -- then he needs to be licensed: If he is not licensed and a license is required -- He gets NOTHING. If he is licensed and the work is improvement to the property, his only remedy is a Mechanic's Lien on John's property, not in breach of contract. Breach of Contract Assuming the above scenario does not apply, David has to rely on Third Party Beneficiary theory for recovery. There are two types of TPBs: Incidental -- He gets NOTHING Intended -- He may be able to recover. |
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Renee
Michigan
549 Posts |
Posted - 12/18/2009 : 11:32:20 AM
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Well, I'm confused (nothing new there!) I didn't raise any fee disclosure questions.
The law says you can't disclose a "debt" to anyone BUT the debtor, they're certainly not saying you can't disclose a "fee" on the Hud. |
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jbelmont
California
3106 Posts |
Posted - 06/02/2008 : 10:34:13 AM
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One of our notaries gave us a great letter that really works to get paid. Some notaries like to modify or adapt it too. Whatever works, right?
We have our letter on http://www.123notary.com/howto-get-paid-signing-agent.htm
Does anyone else have any demand letters that scare signing companies into paying? You are welcome to share your text in this string. |
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