The Compliance Agreement
This document is often part of a loan package. While not notarized, “The undersigned hereby agrees to cooperate”. This cooperation includes working with both the lender and the Escrow or “Closing Agent” to facilitate “reasonable requests”. This cooperation is subsequent to the closing, on an “if necessary” basis. Said cooperation includes providing any and all documentation “deemed necessary or desirable”. It is very open ended with an enforcement clause, to be discussed later in this installment.
The affiants to this agreement, often both the buyer and the seller, are obligated to assist, as “necessary”, to complete the transaction. This completion can include verbiage to include the marketability of the loan and/or securing title insurance. They may be requested (really required) to re-execute documents or sign additional documents. They may also be asked to provide previously “not relevant or considered” documents, to facilitate the closing.
Score one for stating the obvious. While researching this blog, one of the compliance agreement documents specifically stated: The sellers are not required to perform duties and responsibilities of the buyer, and the reverse is also understood. As mentioned the responsibilities of the affiants is a bit open ended. They are both required to not only facilitate requests “deemed necessary” but also those “desirable”. An up to date appraisal would certainly be desirable, but it’s not clearly spelled out who would be required to pay if this was requested. Similarly, it’s not clear who would be responsible for expenses to make the loan “insurable”.
While this document is usually a single page; the issues are rather complex. There are four parties involved: The Lender, the Title Co., the Borrower, and the Seller. It’s easy to visualize conflicts developing. The “enforcement arm” is frequently in the last paragraph. This section includes for recovery of all expenses, and lawyer fees, by the winning party if it is adjudicated.
Thus failure to comply with an “it’s desirable” request (demand?) from Title, might result in Title obtaining the item and billing the, for example; seller. Additionally the seller would, if they contest the cost, and lose; have to pay the attorney fees of the Title Company. Quite a lot of responsibility is included on that one little page. Few bother to read it. It’s generally explained (not by the Notary!) as agreeing to resign a lost document; but it really comprises much more.
I often wondered why such a “strong” document is rarely if ever notarized. Perhaps the public perception of notarized documents being “binding” and others “contestable” is in play. Whatever the reason, all affiants should be aware of the broad scope of the Compliance Agreement. It’s more than just allowing clerical errors to be corrected, much more. I have heard it explained away as only allowing for the correction of typographical errors. “If we put the comma in the wrong place and say you only pay fifty cents a month, not five hundred a month; we are allowed to correct that typo”. Yes, it’s that; but also much more.
How does this apply to the notary? From my prospective the issues are so broad, vague and potentially of great economic effect – I would not attempt to “explain” it; not a bit. If asked a question related to the Compliance Agreement, for me it’s an immediate call to the Loan Officer.
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