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April 30, 2013

Help, I’m being sued, and E&O won’t help

Dinner was over and it was actually time to call it a day and get some rest when there was a doorbell. The family could not help wonder who inthe world this could be this late in the evening. It was approaching 10:00PM for god’s sake. The lady of the house went to the door and the gentleman standing on her porch asked if she was the Mrs. Xyz and she responded yes and then he proceeded to hand her an envelope. He stated; “You have been served”.

She shut the door curious but at this point not to worried.…she was thinking ‘oh this must be a request for testimony or something of this nature’ but as she began to read the documents to her shock and disbelief….she was being sued!. She was devastated to say the least.

It seems that back a few months she had done a modification and something had gone VERY wrong and now the person who’s signature she had notarized had hired an attorney and he as suing everybody that had been involved in his transaction including the notary. This particular client was claiming that there was intent to commit fraud with all the parties that had been involved with his loan modification. The notary contacted her bonding company and they looked over her evidence and found that she was in the clear. She had done nothing notarially wrong therefore they could be of no use. But what makes it worse is that they refused to represent her. It was basically out of their hands. For those of you that don’t know. Errors and omissions is just for notarial mistakes. It will not benefit you any other way. As in the case of this particular notary she was being included in a fraud case so now she was forced to figure out how she was going to defend herself.

She and her husband discussed it and he felt that she would need to hire an attorney and so that is what they did. But unfortunately they found out that it was not going to be cheap. The attorney kindly informed them that it would be about 30,000 when they were finished. Now as I listened to the story I was in shock. I thought that if that were me in this situation I would just be forced to take a different route. I would have to have to represent myself. I would not be able to afford this large sum of money at all. Personally, I would have made a copy of all work orders and correspondence of the hiring parties along with a copy on my journal entries and a signed and notarized affidavit that I did not know any of the parties involved and would have sent this to all the attorneys involved and hoped for the best. In my years as a notary I have a couple of signers on a couple of occasions that were suing the parties that hired me and this is what I have done and it seemed to suffice and I have never had to attend a court trial. Thank the man upstairs!

It might be naive of me but if you know that you didn’t do anything wrong I don’t feel that you need to spend exorbitant amounts of money to prove it…and if you don’t have it and cant get it then you are forced to defend yourself anyway. It is actually disheartening that we have to be drawn into other peoples drama….Which led to me into thinking that we should have some sort of release of liability document for folks to sign when we notarize their signature. The document should state many things for example,; one, that we are verifying identity and signature only on the document, that we did not have anything to do with the preparation of their document, that we do not know them or are we involved in their transaction in any way. Now, I don’t know if this would protect us totally from any lawsuits but I sure would feel a whole lot better having them signing it. And if unfortunately there was a lawsuit maybe it would offer some sort of protection. It would seem to me that in the situation our notary in the story finds herself if she had such document she would less likely NOT be involved in that lawsuit. I look forward to hearing what some of our attorneys her at 123 have to say about this and would love some input as to exactly what the letter affidavit should say.

I am very interested in what others have to say on this subject. I feel for this notary. The bad news is that she is seriously contemplating giving up her commission and her notary business all together. She has been a notary for over a decade and this ordeal has left a bitter taste in her mouth and I do understand. She and I talked for a very long time and she told me that I made her feel better and that at this point she didn’t feel as alone as she had been feeling. I was glad to be able to do at least that much for her. I wish it could have been more. Let me know what you think!

Until next time…be safe!

Tweets:
(1) The borrower had hired an Attorney to sue everyone who had been involved in the modification including the notary!
(2) It would cost $30,000 for the notary’s Attorney fees to defend her from a crime she never committed!
(3) E&O refused to cover the notary since she didn’t make an error or an omission. It was the Lender’s fault!

You might also like:

Protect yourself with a contract
http://blog.123notary.com/?p=2593

Hold harmless agreements: Good idea or not?
http://blog.123notary.com/?p=3657

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7 Comments »

  1. I have just such a disclaimer and have used it from the beginning. I adapted it from a document used by a title company managed by a friend. It basically states that I’m an independent contractor, that I don’t work for the lender or the title company, that I am there strictly for the purpose of witnessing their signing of these documents, that I have no knowledge of the terms of their loan, that if they have questions, they will have been provided with phone numbers to reach their loan officer and should they not be able to reach him/her, I may have a number they can try for help and to feel free to let me know if they wish to make a call at any time. No one has ever refused to sign this form and I keep it in their file. Hope this helps, but you may want to talk with an attorney. It should not cost much to have something of this nature drawn up. Good Luck, it’s a mad world out there.

    Comment by Dorris S. Cox — May 3, 2013 @ 12:25 pm

  2. Dorris, this document sounds like something we should all do. Thanks!

    Comment by Sharon Hopkins — May 3, 2013 @ 3:51 pm

  3. During the research and education preparation for becoming a NSA, I read a book by Edward E Peoples. It recommended and gave an example of an Assignment Disclosure and Hold Harmless Agreement for a notary to use to protect themselves from this type of liability. In it, it explains 1. The role of the notary as an independent contractor and explains that we cannot give legal advice, 2. That the notary makes no guarantees or implied warranties as to the content of the documents, nor does the notary take responsibility for the timely closing of the loan, 3. By signing, the signer is swearing under oath that the statements they make or sign for will be truthful and correct to the best of their knowledge and belief, that they have full knowledge of the transaction and the implications of signing, that they do so of their own free will and intend to abide by the commitments made therein AND FINALLY, that they will hold the notary harmless from any errors, omission or negligence that is beyond the scope of the legal and professional responsibilities of the notary. I have used this agreement for every loan signing that I have performed from the beginning. The signers willingly sign it and I keep it with the signing confirmation in my files…highly recommend as we live in an extremely litigious society.

    Comment by Helen Wardale — May 5, 2013 @ 5:57 pm

  4. I agree about having a hold harmless. But it would not hurt to include a section for reimbursement of legal fees. In the case the borrower needs to sue somebody an attorney would think twice about including an independent notary if he or his client had to pay the notaries legal fees if they lose.

    For instance, here in Michigan, I have been warned by an attorney from the State’s Attorney General’s office not to perform “Debt Settlement” applications. The reason, Michigan licenses “Debt Management” companies who have specific guidelines and fee requirements in Michigan. The Attorney General’s office will go after ALL involved, including the signing company who hired the notary. And, remember, there are NO notarized documents, so E&O for notarial acts wouldn’t even be available. Having the Applicant sign a disclosure might help. But, I won’t even try it here. Now the Debt Settlement companies are offering $150 for the application. I still won’t touch it. Not worth the risk.

    I’ve only been subpoenaed to verify a notarization once. I had already told the attorney that the certificate was for a different document and I didn’t notarize that document. He called me in anyway so he could talk the judge into believing it was the document. I calmly explained that that type of ruling was not in his authority as a judge. Only I could verify the notarization. I then told the judge that his duty was to pick who he was going to have his bailiff arrest, the attorney or the client. He had both arrested for misuse of a notary acknowledgment.

    Comment by Joan Havens — May 7, 2013 @ 8:25 pm

  5. I just found copies of notary procedures by Edward E Peoples at the following site.

    http://www.alibris.com/booksearch?browse=0&keyword=Edward+E+Peoples+notary&mtype=B&hs.x=0&hs.y=0

    Comment by Joan Havens — May 7, 2013 @ 8:34 pm

  6. Hi Dorris, for my clarification regarding your statement “you may want to talk with an attorney. It should not cost much to have something of this nature drawn up.” Are you saying this should be done by an attorney? Or is this something we (NSA) prepare this on our own and have borrowers sign along with the other documents we present them with at time of signing? I’m not understanding if this is something that hss to be done by an attorney or not. Thank you.

    Comment by TexasRose — May 10, 2013 @ 4:04 pm

  7. Yes this does mske sense But kets say the notary DID KNOW WHAT THE DOCUMENT WAS AND WHAT IT CONTAINED. And the employer told her to sogn in the ABSENCE SND WITHOUT THE KNOWLEDGE OF THE SIGNER!! Actually the signer was rhe TRUSTEE OF AN IRREVOCABLE TRUST!!!
    Ir was THE MAIN CAUSE OF THE ENTIRE FAMILY BREAKING DOWN . An expensive divorce and unimaginable heartbreak and medical trauma for 11 years ir more!!
    K.Rossin

    Comment by K.Rossin — November 8, 2016 @ 5:38 pm

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