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ceb193
Pennsylvania
13 Posts |
 Posted - 12/03/2013 : 4:42:20 PM
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Ken,
You are on point and these people who are saying anything but are idiots.
Of course there is a financial interest if you get more or less depending on the outcome of someone signing.
There is no contract that can override the law. One can write it but it is a useless to argue in any court. The law clearly states that no interested party can be a notary. You have interest if the outcome depends on a loan funding or you acquiring signatures as a result of them deciding to sign.
I am an attorney by education and teach (Political Science and Law classes at PSU. I performs signings on the side as I enjoy doing them.
I would not begin to argue with some of these people.
I keep in my correspondence my terms of service agreement.
Terms of Service Agreement
If "Open Late Auto Tags & Mobile Notary llc.", makes a trip and go to a borrower’s location, we will be paid in full as agreed upon herein. A situation beyond our control would be a signer not signing. We would be paid in full for such an occasion, as we could always be at another location working for another client. A loan not closing or funding properly is not a reason to not pay Open Late Auto Tags & Mobile Notary llc. We expect to be paid in full for services rendered. It would be illegal under Pennsylvania law to attempt to withhold our fee for an individual not signing or the loan not funding. The law is quoted below directly from The PA Dept of State website.
We never proceed to any location unless we are able to confirm the appointment with the borrower. We only deviate from this rule unless you agree to pay us in full for the fee used in the first acceptance offer. If a signature is missed, or an error made, we hereby agree to obtain the signature, or fix the error, at our expense (for travel and time) immediately with no fee reduction; unless we see fit to do so (and this must be in writing as an acknowledgement allowing such a reduction). We always do our best to insure you get your package as soon as possible, as you are my client and we are always here to serve your best interests. We are well aware that all documents are time sensitive. We thank you in advance for your anticipated understanding in accepting these terms. Please note that we only agree to our terms as set forth above and any terms you forward in emails are null-void as you agree to our terms by utilizing our services. Just as an original fee is agreed and acknowledged in writing, when we agree to a fee, these terms are non-negotiable. If you deviate from our terms of service, we reserve the right to refuse future business transactions. Thank you for your anticipated understanding and cooperation in dealing with this matter.
Limitation on Notary Public
No notary public may act as such in any transaction in which he is a party directly or pecuniarily interested. Pecuniarily is defined as financially or monetarely. For the purpose of this provision, none of the following shall be a "direct or pecuniary interest".
3) receiving a fee that is not contingent upon the completion of the notarized transaction.
Powers/http://www.portal.state.pa.us/portal/server.pt/community/powers_of_a_notary/12619
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edelske
New York
815 Posts |
Posted - 03/26/2008 : 4:25:19 PM
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quote:
Originally posted by Renee
It's already a law that serves this purpose, why look for another law?
Because you can agree to a "trip fee" in contract, but not in Notary Law. For that reason many SS's have a "trip fee" in in the confirmation (contract).
My point is that Notary law does not allow for a lesser fee for notarizations that "don't fund" as that would make notary financially involved in the transaction. You can't agree to getting more money for what funds compared to what does not fund.
But, it seems laws differ and we will go our separate ways - ultimately arriving at the same destination ---> pay me in full
Ken |
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Renee
Michigan
549 Posts |
Posted - 03/26/2008 : 07:59:57 AM
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Sounds too convoluted to me - as if you're applying your own conditions to the meaning of the statutes, which are what they are and I don't agree (of course, I'm fueled by MI's more clear-cut statute) that we have any interest as the law would define it.
BUT ... there's already a very clear legal standing that can be used in this battle, and that is contractual law. Forget the whole notary argument - if you're contracted to perform a service and the terms of the contract are not satisfied, then there's the already laid-out map for your recourse. No semantics at issue, no gray areas. Does not require any further tweaking of existing statutes, does not need any reinventing of any wheels. It's already a law that serves this purpose, why look for another law? |
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edelske
New York
815 Posts |
Posted - 03/26/2008 : 06:40:10 AM
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quote:
Originally posted by edelske
what I am trying to say is that it is improper to have a financial interest in the OUTCOME of the documents. Of course we charge fees, but they cannot be based on "what happens" after our work.
BUT KEN, MY QUESTION - if you're saying that your statutes indicate to you that you HAVE a financial interest, then how do you rationalize doing signings in the first place?
I do not have a financial interest when I perform a "fee for service" - that is in the codes - notaries are permitted to charge a fee for service. I do have a "financial interest" when the fee varies based on the results of what I notarize.
OUTCOME OUTCOME OUTCOME - more money if "this" less money if "that". Then I am no longer a disinterested party. I become an "involved party" - to the transaction. Your question cuts off the key issue - an interest in the OUTCOME of the documents.
I don't have to "rationalize doing signings" - that is a well established fact of a major industry. What I have to do is to avoid a situation where the OUTCOME of what I notarize has a financial effect directly to me related to the OUTCOME of what I notarized.
Ken |
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Renee
Michigan
549 Posts |
Posted - 03/26/2008 : 05:00:12 AM
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I'll raise up my own very stale point on this again:
(10) For purposes of subsection (7), a notary public has no direct financial or beneficial interest in a transaction where the notary public acts in the capacity of an agent, employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial interest in the transaction.
(Above taken from MI statutes) Clearly, MI has found it's way through this tangle.
BUT KEN, MY QUESTION - if you're saying that your statutes indicate to you that you HAVE a financial interest, then how do you rationalize doing signings in the first place?
Either you have a forbidden interest (and signings would then be illegal for you to do), or you don't.
Game back on?  |
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LindaH
Florida
1754 Posts |
Posted - 03/25/2008 : 3:46:17 PM
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Ken..you're killing me!! My post was over 2 months ago - I didn't even remember what I said!! <G>
Anyway - charging for services rendered (trip fee, print fee, etc.) isn't having a financial interest in the outcome of the documents ... it's charging for services you've already rendered and for which you're entitled to be paid. And I still say that the minute you accept the assignment you have a financial interest in the transaction..and the only way out of that is don't charge a fee.
And Ken? Keep in touch - no more letting two months go by!! It's true that the memory is "one" of the first things to go...:)
Linda
www.notarydepot.com/notary/lindah
http://www.notary.net/websites/LindaHubbell
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edelske
New York
815 Posts |
Posted - 03/25/2008 : 11:35:02 AM
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linda:
With this statement you've established your financial interest in the transaction right at the outset - the only way to remain LEGAL, as you put it, is to not charge - no fee, no financial interest, no problem.
Linda - what I am trying to say is that it is improper to have a financial interest in the OUTCOME of the documents. Of course we charge fees, but they cannot be based on "what happens" after our work.
ken
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Shannon
California
360 Posts |
Posted - 03/15/2007 : 12:41:25 AM
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| I find these same individuals as the ones who also blame the notary when the wheels fall off their deal or the borrower executes their 3-day Right-to-Cancel. It couldn't possibly be because they blew it. |
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jlissem
New Jersey
139 Posts |
Posted - 03/14/2007 : 9:36:37 PM
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In New Jersey I have been contacting state Legislators in an effort
to add a specific regulation that would ban title ins. companies from paying no or reduced fees for loans that do not close.
A number have agreed that this practice puts the borrower at risk, beause a Notary is a disinterested Officer of the State and should not be offered any inducement to "sell" the loan.
Title Insurance Cops. are licenced by the state and come under any regulations a state wishes to impose.
I am not refering to no shows or borrowers without proper I.D. when the signing does not even start.
I think any experienced Notary signing specialist has run into the
"We are looking for team players to CLOSE our loans" attitude".
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Shannon
California
360 Posts |
Posted - 03/14/2007 : 10:22:53 AM
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| Well, travel fees are travel fees and Notary fees are Notary fees. I charge cancellation fees all the time when I have travelled and the signing falls apart at the table for one reason or another- like because docs were drawn wrong or differently than the signer had expected. I don't know any T&E or Lenders who will pay the full freight for a signing that doesn't actually happen. However, I know plenty that can, do and should pay me for my time, travel and trouble. I wouldn't work for a company that would expect me to eat it (for example) if the Broker didn't sell his deal....that's not my fault. I acted in good faith and provided service.... Ultimately, as NSA's we don't have any real interest in the deals we sign...we don't for example take on any ownership interest etc. One thing really has nothing to do with the other... |
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edelske
New York
815 Posts |
Posted - 03/14/2007 : 10:06:41 AM
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The basis of my original post can be found at:
http://www.dos.state.ny.us/lcns/lawbooks/notary.html
The title of that section is:
NYS Department of State Division of Licensing Services
Notary Public License Law
The relevant section is:
Notary public—disqualifications.
Though a person may be eligible to hold the office of notary the person may be disqualified to act in certain cases by reason of having an interest in the case. To state the rule broadly: if the notary is a party to or directly and pecuniarily interested in the transaction, the person is not capable of acting in that case. For example, a notary who is a grantee or mortgagee in a conveyance or mortgage is disqualified to take the acknowledgment of the grantor or mortgagor; likewise a notary who is a trustee in a deed of trust; and, of course, a notary who is the grantor could not take his own acknowledgment. A notary beneficially interested in the conveyance by way of being secured thereby is not competent to take the acknowledgment of the instrument. In New York the courts have held an acknowledgment taken by a person financially or beneficially interested in a party to conveyance or instrument of which it is a part to be a nullity; and that the acknowledgment of an assignment of a mortgage before one of the assignees is a nullity; and that an acknowledgment by one of the incorporators of the other incorporators who signed a certificate was of no legal effect.
(underlining added by me)
To me that means if I get more money if it funds than if it dont I am in violation as there is a clear financial (directly and pecuniarily interested in the transaction) difference in MY bottom line - based on the outcome (did it close?) of the transaction.
Saying the collection of ANY fee is silly - as the State of New York sets a standard fee of $2 per notarization - thus they allow notaries to collect money for their work.
Kenneth A Edelstein
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Renee
Michigan
549 Posts |
Posted - 01/03/2007 : 04:47:56 AM
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quote:
(10) For purposes of subsection (7), a notary public has no direct financial or beneficial interest in a transaction where the notary public acts in the capacity of an agent, employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial interest in the transaction.[/blue]
Thanks for the acknowledgment, Russ - I see that, and raise you one Nothing like a good debate amongst peers. How are you slicing the above subsection though?? Granted, the quote is MI law, and you're in WY, but you're saying your interpretation of the above is that it supports the opinion of fees being paid to PREVENT financial interest? To me, it reads pretty black and white, to the opposing view.
I'd also like to raise another point in this debate - and as often is the case, I'll be bucking convention here  :
Once upon a stormy night, loans closed inside title offices. Title offices remain not only as potential clients, but also as competitors for us.
The independent or 'outside' closer must present some added value to using US instead of THEM. If a loan closing inside poses zero risk to anyone's pockets should that loan never fund (no-sign, rescind, etc) - then WHY should they choose US instead, if (as you're proposing) we would pose a liability??
Here's where I really go off down the left trail - I never charge for no-signs, rescinds, etc. If they don't get paid, I don't charge. Now please - hear me out ...
How many rescinds have I had?? NOT ONE THAT I AM AWARE OF. Meaning - either I've never had a loan rescind (which I doubt is accurate), or I've simply been paid and never knew it rescinded. Ok, so THAT'S not posing me any financial distress ...
As for the no-signs - haven't had one since around July, before that can't remember. RARE. Again, no financial distress.
So - I am able to give the added value of choosing ME, at absolutely no added liability, and I'll be convenient for the borrower, as opposed to going inside a title office to close.
I've reached the 'preachy' level on this - charge appropriately for a professional job, and your clientelle will be of a different caliper. TRACK your no-signs & rescinds - if you're having more than 1/100 - well, track them and you'll see which client to trim away (and you'll see the patterns are to specific mtg brokers or even specific L.O.'s).
So the way I see it - the whole debate is really moot. It implies a problem of a nature so serious that it needs to be addressed - I'm of the opinion that it's not addressing the right problem.
Game on, buddy! |
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Russ_WY
Wyoming
10 Posts |
Posted - 01/03/2007 : 12:30:24 AM
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I agrre that state law sources should be cited or at least tell us the state you are referencing.
As an aside - "...It could/may be detrimental (possible lawsuit for the unauthorized practice of law) to you if you give incorrect information. Errors and Ommissions would be an appropriate thing to carry if you participate in passing along bad info
". The term use of "Unauthorized Practice of Law" has become way too sensitive recently. You do not have to be an attorney to cite the law. Giving legal advice should be used with caution but 90% of the time the law is black and white. "Do this and suffer the results of your actions", Legally you can/cannot do that"...Sue me if I tell you you can get a ticket for speeding (it's the law). Common sense plays a major role. |
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dfye@mcttelecom.com
New Hampshire
681 Posts |
Posted - 01/02/2007 : 11:55:17 PM
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I would politely request and I hope that all you notaries agree, that if you are going to say something is illegal or you comment on state law, that you quote your source. The information you give in this forum should be used to better yourself as a signing agent and if you are giving incorrect information it does not do anyone justice. For us to make it in the signing industry, we need exact information regarding the legalities that can be used to protect ourselves through the signing process. Ultimately, we would like to protect everyone all the way around but as you can see, the industry can be cutthroat. Please do your research.
It could/may be detrimental (possible lawsuit for the unauthorized practice of law) to you if you give incorrect information. Errors and Ommissions would be an appropriate thing to carry if you participate in passing along bad info.
Nothing in this post should be construed as legal advice. I am not an attorney, yet.
Legal Eagle Para Professional Services |
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Russ_WY
Wyoming
10 Posts |
Posted - 01/02/2007 : 11:50:19 PM
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I don't agree. I perform my service just as the appraiser - he/she has no interest and neither do I. Therefore, my fee should NOT be contigent upon whether or not the loan funds. If the SA thinks that my services should not be paid because the loan didn't fund, they actually place me in the position of having a vested interest. That is not my role as witness and notary. I am there to perform a specific service for a predetermined fee.
Over the years I have actually asked the attorneys that were present during attorney assisted closings. That has been their consistant reply to my question. They certaintly expect to get paid for their time and service regardless as to the loan closing or not.
The concept isn't complicated but some make it that way. I have over the years actually motivated non-payers realize this and received my full payments. - The only thing I can see is that certain state statutes wording make it confusing. All I know for sure is that here, I am wholly within my legal rights to demand full contracted fee. |
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dfye@mcttelecom.com
New Hampshire
681 Posts |
Posted - 01/02/2007 : 11:41:03 PM
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quote:
In my opinion, the prohibition of notaries having a financial interest in the loan/transaction means (1) they can't be a party to the loan and receive any financial benefit from the loan; (2) no deed of conveyance transferring the property to the notary (thereby affording them equity rights). Fees charged by NSA's are fees for services rendered, just like the appraiser, broker, title searcher, etc..
JMO and I am not an attorney.
This sounds a little more like it. Aren't opinions great?
Legal Eagle Para Professional Services |
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LindaH
Florida
1754 Posts |
Posted - 01/02/2007 : 10:45:42 PM
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Then following this logic, Russ (and Edelske), you shouldn't perform any services as a notary or a notary signing agent unless you do them free of charge - as long as you charge for your services you have a financial interest in the transaction as pointed out by Edelske's post, in part..
"I ask them to send me a statement that FULL fee is for "offering the borrower the OPPORTUNITY to sign" and that I must, to remain legal, receive my full fee even if the borrower stops signing, cancels, or the loan does not fund for any reason"
With this statement you've established your financial interest in the transaction right at the outset - the only way to remain LEGAL, as you put it, is to not charge - no fee, no financial interest, no problem.
In my opinion, the prohibition of notaries having a financial interest in the loan/transaction means (1) they can't be a party to the loan and receive any financial benefit from the loan; (2) no deed of conveyance transferring the property to the notary (thereby affording them equity rights). Fees charged by NSA's are fees for services rendered, just like the appraiser, broker, title searcher, etc..
JMO and I am not an attorney.
Linda |
Edited by - LindaH on 01/02/2007 10:46:45 PM |
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Russ_WY
Wyoming
10 Posts |
Posted - 01/02/2007 : 9:32:54 PM
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quote:
Originally posted by Renee
Russ, you wrote:
"The verbage you "added" contridicts the meaning and purpose of the original text. You have twisted it to justify your point. It has no legal standing."
I did not add any verbiage - I only HIGHLIGHTED some of the text. I can see how my statement "the highlights are my own" might have confused that.
Just to clarify - nothing was 'twisted' to serve my own purposes, and what is posted certainly has legal standing, since it is the actual law in MI that I've quoted.
Thank you Renee for the clearification. I did in fact mis-understand and I heartly appoligize to you.
Just reading the text w/o adding extra emphasis in my mind for your highlight, I still agree with the original post. I still see an "interest" in the outcome of the loan and my being paid.
Thanks for your reply.  |
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Renee
Michigan
549 Posts |
Posted - 01/02/2007 : 2:54:58 PM
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Russ, you wrote:
"The verbage you "added" contridicts the meaning and purpose of the original text. You have twisted it to justify your point. It has no legal standing."
I did not add any verbiage - I only HIGHLIGHTED some of the text. I can see how my statement "the highlights are my own" might have confused that.
Just to clarify - nothing was 'twisted' to serve my own purposes, and what is posted certainly has legal standing, since it is the actual law in MI that I've quoted. |
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Russ_WY
Wyoming
10 Posts |
Posted - 01/02/2007 : 10:23:18 AM
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I have been a notary in three different states over the past 30 years. Along the way I have taken the time to review statutes in other states as well. The consistant theme is that as a notary, you may not (or it is strongly suggest that you do not) notarize anything that you have a direct interest or financial gain in. Now, I meet that criteria if my being paid for my services is dependant upon the loan funding.
I am being paid to perform a service. That is witnessing and notarizing. If I accomplish that then I should be paid accordingly - in full as contracted for. |
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dfye@mcttelecom.com
New Hampshire
681 Posts |
Posted - 01/02/2007 : 06:41:49 AM
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Let's get it clear once and for all for notaries who can use the information. Edelske, can you qoute your source and the exact law? The information below is not clear enough to go on. What state are you in?
Legal Eagle Para Professional Services |
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Russ_WY
Wyoming
10 Posts |
Posted - 01/02/2007 : 03:52:41 AM
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quote:
Originally posted by Renee
I would also like to see the law that edelske is interpreting.
Following are direct excerpts from MI PA 238 - the highlights are my own, and point out how edelske's interpretations would not be in alignment with MI's statutes:
(7) A notary public shall not perform any notarial act in connection with a transaction if the notary public has a conflict of interest. As used in this subsection, "conflict of interest" means either or both of the following:
(a) The notary public has a direct financial or beneficial interest, other than the notary public fee, in the transaction.
(b) The notary public is named, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor, or lessee or as a party in some other capacity to the transaction.
(10) For purposes of subsection (7), a notary public has no direct financial or beneficial interest in a transaction where the notary public acts in the capacity of an agent, employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial interest in the transaction.
The verbage you "added" contridicts the meaning and purpose of the original text. You have twisted it to justify your point. It has no legal standing.
The original post is correct. If you remove your added text, you have precisely what was stated earlier. You absolutely DO have a vested interest in the loan if your fee is dependant on it closing for payment. |
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dfye@mcttelecom.com
New Hampshire
681 Posts |
Posted - 12/01/2006 : 10:27:25 PM
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Renee, your research is very well appreciated.
Legal Eagle Para Professional Services |
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Renee
Michigan
549 Posts |
Posted - 12/01/2006 : 8:09:16 PM
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I would also like to see the law that edelske is interpreting.
Following are direct excerpts from MI PA 238 - the highlights are my own, and point out how edelske's interpretations would not be in alignment with MI's statutes:
(7) A notary public shall not perform any notarial act in connection with a transaction if the notary public has a conflict of interest. As used in this subsection, "conflict of interest" means either or both of the following:
(a) The notary public has a direct financial or beneficial interest, other than the notary public fee, in the transaction.
(b) The notary public is named, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor, or lessee or as a party in some other capacity to the transaction.
(10) For purposes of subsection (7), a notary public has no direct financial or beneficial interest in a transaction where the notary public acts in the capacity of an agent, employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial interest in the transaction.
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n/a
6 Posts |
Posted - 12/01/2006 : 02:57:46 AM
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Yes, Yes, and Yes.
Edelske, I agree with this explanation 100% that NSA's must remain impartial. We too have experienced that no one wants to hear about time, toner, gasoline, etc. We feel as that if we agree to a reduced fee that it indrectly implies that the notary would coerce in order to recieve a full fee.
The thing that surprises me the most is the number of signing services and even title companies that demand notaries accept these terms to recieve assignments.
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edelske
New York
815 Posts |
Posted - 11/30/2006 : 10:16:31 AM
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Notaries are PROHIBITED form having a "financial interest" in the documents they notarize. Your fee is for performing the Notary Service and may NOT vary with the "outcome" of the document/transaction. It is both ILLEGAL and improper for you to agree to accept a "lesser" fee, if the borrower cancels, refuses to sign all the documents (after you notarize at least one) or the loan does not fund for ANY reason. The logic is that the notary is in a position to "sway" the outcome. If the notaries dollars are at stake they would tend to say "It's a great deal! Sign it". Of course we dont say any such thing. But, it would be "tempting" to do so if one earned twice as much money for a package that funds. That is the reason we are prohibited (at least in New York, and probably most other juristictions) from having a financial interest in the outcome.
When I see "We pay half (trip fee) for loans that dont fund" - I always point out the "financial interest" aspect being improper and insist on an email retracting that clause. I ask them to send me a statement that FULL fee is for "offering the borrower the OPPORTUNITY to sign" and that I must, to remain legal, receive my full fee even if the borrower stops signing, cancels, or the loan does not fund for any reason. MOST send the statement to me. They don't want to hear about your (time, paper, toner, gasoline, etc) but "most" are very interested in an honest legal aspect of their business communications. |
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USA - Less "trip fee" for cancellations is ILLEGAL
