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Source of Title Blog

A Stray Mortgage
by Robert Franco | 2009/05/27 |

Yesterday, we got one of the phone calls that we all dread... "you missed a mortgage!"  That always causes a sense of panic and we rush to double check our work.  In this case, title was vested in Ray A. Smith, we checked the index again and only found the one mortgage that we showed.  The client, however, provided a volume and page.  When we pulled the document and it was, indeed, a mortgage with our legal description.  However it was executed by Andy Smith - NOT Ray A. Smith.  Thus, it was a stray document - outside of our chain of title.

Source of Title Blog ::

In Ohio, the grantor/grantee indexes are the official indexes.  Some counties also provide tract indexes, which index the recorded documents by legal description.  In such a county, we would have been able to find the mortgage, regardless of the incorrect name.  This county, however, does not maintain a tract index.

It is also possible, that we could have found this mortgage if the book indexes were still maintained.  In such a case, it is possible that both mortgages would have been indexed on the same pages and we may have picked it up by scanning the brief legal description provided in the index.  But, with the literal searching that we have with the computers in this county, it would never have been found.  In this county we enter the last name and first few letters of the first name.  Thus, "Smith R" would not have returned any entries for "Andy Smith."

In my opinion, this mortgage was outside the chain of title and does not provide constructive notice to third parties.  Had it not been brought to the attention of our client, I don't think that they (or we) would have been liable for missing it.  The second mortgage holder would have had a claim on their lender's policy, if they have one.

Whoever, prepared the mortgage or closed the loan, should have done a title search and noticed that title was not vested in Andy Smith, but rather Ray A. Smith.  The mortgage should have been executed by Ray A. Smith, or at least should have contained an AKA to ensure that it was indexed in the chain of title. 

Abstractors are not psychic.  Computer indexing places limits on the abstractor that make it important for those preparing documents that will be recorded to get them right.  I have always believed that if the mortgagor isn't signing exactly the way title is vested, an appropriate AKA should be added.

Robert A. Franco
SOURCE OF TITLE




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Categories: Abstractors, Title Problems

584 words | 3908 views | 1 comments | log in or register to post a comment


Robert, I agree with you. My opinion on how this happens...

"Whoever, prepared the mortgage or closed the loan, should have done a title search and noticed that title was not vested in Andy Smith, but rather Ray A. Smith.  The mortgage should have been executed by Ray A. Smith, or at least should have contained an AKA to ensure that it was indexed in the chain of title."

No Esq. after my name and Told to follow the notary instructions ... borrower must sign name exactly as typed. Borrower wants money now; I want to get paid; we do what we're told - knowing it's "wrong".  He who has the gold rules, but not always wisely.

I see this one quite often, only because the title binder is included in the package to be fowarded to the title company.  Document names are EXACTLY as a data entry clerk put them in the system - Andy Smith.  Every document printed has the names perfectly alike, Andy Smith - pass quality control.  The Signature Name Affidavit may, or may not, include Ray A. Smith.  My guess (not blame): The person who entered the loan application data does so based on information from loan originator or mortgage broker or some paperwork (not the deed); not that person's "job" to review title report.  The person "printing" the loan documents may, or usually doesn't, update information; not that person's "job" to review title report.  The "closer" who sends the documents out checks that the names are printed the same as in the system; if lucky, that person reviews the title report  ... hmmm...  wonder if that's how Ray A. Smith got added to the Signature Name Affidavit.

When signing the loan documents, Ray Smith comments that everything has "Andy" on it.  Without an Esq. who has a title report in hand sitting at the table, 99% reponse to "if there is a question, call the number..." is voice mail (no answer) or "he must sign exactly as his name is typed  ... re-draw fee of $$$$ .... the loan won't fund."  Andy Ray doesn't want to do this again and just wants to "Get 'R Done", not more fees and delays; he signs.  Customer tried, I tried.  When the person holding the gold tells you that the loan won't fund and you won't get paid unless documents are signed exactly as name is printed, we follow ORDERS. 

I had one that I went out THREE times (and got paid).  Borrowers were very angry (to put it mildly), FIRST TWO times their names were wrong!  Clearly, wrong.  They had sent documentation with correct names.  #1 Loan package goes back with copy of drivers license and certified copy of COURT Change of Name from FIVE years ago.  As a notary, I can only ID with current identification, which I did - lots of phone calls got angry response from "lender" as above.  Signed all "wrong" (with unique notarial certificate) because were told would lose rate, would have to pay MORE for re-draw fee (even though not their mistake), etc.  #2 Loan package comes - one out of two names corrected! #2 goes back with Court Change of Name (again) and a copy of recorded Deed. I saw the title report - WRONG names; my opinion was a penny saved by not using a Professional title searcher at the Town Land Records (Town Clerk's opinion, too, as she sees "this lazy stupidity of using the on-line index and never coming in to look at the documents" all the time when a recorder comes in and "looks" at the deed).  Names taken from the index, not the documents.  When you looked at the Recorded Documents, you could easily see the correct names. As everyone on this board knows, the "indexing system" is not exactly the same as the actual document.

 
by Bobbi Shorthouse, Notary Public | 2009/05/29 | log in or register to post a reply
Source of Title Blog

Robert A. FrancoThe focus of this blog will be on sharing my thoughts and concerns related to the small title agents and abstractors. The industry has changed dramatically over the past ten years and I believe that we are just seeing the beginning. As the evolution continues, what will become of the many small independent title professionals who have long been the cornerstone of the industry?

Robert A. Franco
SOURCE OF TITLE

 

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