Ask the TITLEMAN™ - Escrow License; Notary Duties; Legal Guardian
by John T. Lotardo aka TITLEMAN™
Sr. VP/General Counsel, Stewart Title & Trust of Phoenix, Inc.
Q. I am getting conflicting information, and I was told that you are the authority on such things. Can you please tell me the requirements for an escrow agent in Arizona? Specifically, so we need to have each individual agent as well as getting the company licensed?
A. Thanks for your question. I understand how it can be confusing with all the licensing requirements out there, to figure out about who is or is not to be licensed. Individuals who work for an escrow company are not licensed with the Department of Financial Services- the escrow company is the one who holds the escrow license. When you open a branch, you do need a separate branch license but not for the individuals who work within the office.
Q. I am one of the people who do notary closings. With degenerative disk disease it’s one of the few things I can do and not become homeless in these tough times. I work or have worked for over 50 companies from all over and each require me, as a Notary, to witness signatures and notarize ONE original mortgage. I have this one company that wants me to notarize THREE original mortgages and it seems it’s for a CYA operation they have elsewhere. They want two on file somewhere in case the one sent for recording gets lost. I am arguing with them that I will notarize only ONE original (in over 40 years of administrative work, I say there should be only ONE original). Although I will not use your thoughts in any of argument, I would appreciate them nonetheless. Most notary instructions are very general and a lot is left to one’s own experience and knowledge. Thanks for any thoughts, etc. you might give me.
A. Thank you for your question. I am glad to hear you are still active and commend you in those efforts. Keep going! As for your question, it seems that your past experiences with mortgages are a great asset in your current profession as a notary. Your concerns, although some would argue are outside the scope of your duty as a notary, are well taken. The borrower who only owes $100,000 on a loan would not want to have to explain down the road why they don’t owe $300,000. It would be even harder to explain about three promissory notes since notes are what is called security instruments and should rarely, if ever, be duplicated. But as you said, the explanations given you seem to make sense. Items get lost and/or misfiled. Perhaps a conformed copy of the one original mortgage, or deed of trust for that matter, may suffice for the lender. If not, how about marking each of the documents on the front page with a statement that this document is one of three originals which represent a single debt of $100,000 and the purpose of the duplicity is for record-keeping endeavors only. With a little work, maybe you can work out a solution that makes sense for all.
Q. I have a daughter of a seller that tells me that she has been appointed legal guardian for her father. She states that gives her power of attorney for her father and she doesn’t need anything else other than that to sign for him. What is she saying?
A. One thing I can say for sure is that what she says is inconsistent. If she has been appointed guardian by an Arizona Court, she would have court documents to that effect, which you would need to review. By the way, if she was appointed guardian but not conservator of his estate, she would not normally be entitled to sell his property unless by a separate court order. This is true at least in Arizona, since Arizona separates appointment over someone’s person (guardianship) from appointing someone to protect someone’s assets/property (conservatorship).
The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Copyright John T. Lotardo. All rights reserved. John Lotardo (aka the TITLEMAN™) is Senior Vice-President and General Counsel for Stewart Title & Trust of Phoenix, Inc., and State Underwriting Counsel for Stewart Title Guaranty Company. He is a member of the National Advisory Councils for GoGetEscrow.com, GoGetLoan.com, GoGetNotary.com and GoGetRealEstate.com. The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. For more about John, visit: www.GoGetEscrow.com/Get/Titleman or www.AskTheTitleman.com.