powerpoint and audio for the december 17, 2015 · powerpoint and audio for the december 17, 2015...
TRANSCRIPT
Note:
PowerPoint and audio for the December 17, 2015 Webinar, “Basic Manual: Organization, Changes, Reorganization, Favorite and Little Known Rules”
is now available on our website.
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ADDITIONAL HOUSEKEEPING
INFORMATION
Because of opinions expressed by the Texas Insurance Department
concerning rebates, legal credit is available only to:
Attorneys who own title agencies that are Stewart Title Guaranty Agents
Attorneys employed by a title insurance agent licensed with Stewart Title
Guaranty or Stewart entities
Fee attorneys who have an Escrow Officer license through a Stewart Title
Agent or Stewart entity
If you are claiming legal credit for this web conference, please provide in
your email which category you are in.
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We welcome any other lawyers to
listen, but cannot provide continuing
education credit to you.
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ACKNOWLEDGE
THE
KNOWLEDGE!
Richard L. Black
Associate Senior
Underwriting Counsel
Austin, TX
ACKNOWLEDGE THE KNOWLEDGE!
Acknowledgements, New Notary Law,
Correction Documents, and Recording
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New Notary Law: The Final Chapter?
TEX. GOV. CODE §406.001(a) effective 1/1/2016:
--Texas notary public’s seal of office must contain
notary’s State-issued identifying number.
--TEX. ADMIN. CODE §87.4: Inclusion of notary’s ID
number in the seal is required only with new/renewed
notary commissions after January 1, 2016.
--RECOMMENDED: Upgrade to a compliant seal now!
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What entitles a document to be recorded in the County
Clerk’s records?
--Statutory acknowledgment (short-form or long-form)
under Chapter 121, TEX. CIV. PRAC. & REM. CODE;
--Jurat (“subscribed and sworn to before me”) under TEX.
PROP. CODE §12.001(a); OR
--Certification or apostille under TEX. PROP. CODE
§12.001(a), relating to public documents.
Recording of Documents
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What is the purpose and benefit of recording a real
estate document?
--Acknowledgement = entitlement to recording.
-- Recording = constructive notice versus actual notice.
--Binding effect of unrecorded documents.
--Multiple grantors.
--Abstract of Judgment exception: Recording and
indexing.
Recordation and Notice
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According to TEX. CIV. PRAC. & REM. CODE §121.001:
--For general purposes when done within Texas:
--District Court clerk;
--County Court judge or clerk;
--Notary Public.
--For general purposes when done outside Texas, but
within the United States or its territories: Basically the
same.
Who Can Take Acknowledgements Part 1
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When done outside the United States or territories (CIV.
PRAC. & REM. CODE §121.001):
--U.S. State Department personnel (consul, deputy
consul, commercial agent, consular agent, commissioner,
or charge d’affaires) accredited to and resident in the
country; OR
--Notary Public or other official authorized to administer
oaths in the jurisdiction where acknowledgement is
taken.
Who Can Take Acknowledgements Part 2
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Military personnel anywhere in the world (CIV. PRAC. &
REM. CODE §121.001):
--Acknowledgement by U.S. service member or
member’s spouse can be taken by commissioned officer
in any United States military service branch.
--Presumption of acknowledgement’s regularity arises
when certificate shows officer’s rank and service branch.
--No seal required.
--TEX. GOV. CODE §602.005: Same for jurats.
Who Can Take Acknowledgements Part 3
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Federal penal/correctional institutions (18 U.S.C.A.
§4004):
--Acknowledgor can be any officer, employee, or inmate
of the institution.
--Acknowledgements can be taken by wardens and
superintendents, associate wardens/superintendents,
chief clerks, and record clerks.
--No fee/compensation is allowed.
Acknowledgements Taken in Federal Prison
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TDC or jail inmate may make a “unsworn declaration” in
lieu of declaration, verification, or certification required
by statute (TEX. CIV. PRAC. & REM. CODE §§132.001—
132.003).
--Must be in writing and subscribed by declarant.
--Prescribed statutory form of declaration must be used.
--If inmate’s unsworn declaration is the equivalent of a
jurat, will it also serve as an acknowledgement?
Texas Prison/Jail Inmate’s Unsworn Declaration
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When is a Notary Public considered disqualified from
taking an acknowledgement?
--Party to the instrument or spouse of a party.
--Financial interest in the transaction.
--Participant in an entity who is a party.
--Trustee/beneficiary under trust involved in the
instrument (including a Deed of Trust trustee!)
--Agent/attorney-in-fact for another party in transaction.
Transactional Disqualification
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Notary public taking acknowledgement of a physically
disabled person may sign for the acknowledgor (TEX.
GOV. CODE §406.0165):
--Disability of the requesting party must be severe
enough to prevent making personal signature or mark.
--Notary’s surrogate signing must be done in the
presence of one disinterested witness.
--Required statutory statement under the surrogate
signature identifies the witness and cites the statute.
Notary Public as Surrogate Signer
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Signer’s acknowledgement can be remote from notary
by means of a “witness acknowledgment” (TEX. CIV.
PRAC. & REM. CODE §§121.009—121.010):
--Witness must sign the acknowledged document as
witness to the signer’s signing or to signer’s oral
declaration of acknowledgment.
--Witness later appears before notary, and notary makes
a statutory certificate of witness’ testimony to be attached
in lieu of signer’s regular certificate of acknowledgment.
Witness Acknowledgement
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Instrument may qualify for recording based on
handwriting evidence and notary’s statutory certification
(TEX. CIV. PRAC. & REM. CODE §121.001).
--Grantor and all witnesses must be dead, out-of-state,
whereabouts unknown, or legally incompetent.
--Notary takes handwriting evidence by written deposition
from at least two disinterested persons which is
incorporated into notary’s certificate attached to
instrument for filing.
Proof of Instrument by Handwriting
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Federal and State of Texas “grants” are recordable
without further acknowledgement or proof (TEX. PROP.
CODE §12.006).
--Attorney General’s Opinion No. WW-805 (2/18/1960): A
properly executed and authenticated deed from the
Veterans Land Board of the State of Texas qualifies as a
“grant” under this statute.
--Also extends to land patents signed by the Governor of
Texas.
Acknowledgment Not Required
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Acknowledgement lacking notary seal is NOT invalid
when taken in another U.S. state where use of seal is not
required (TEX. PROP. CODE §12.001 & TEX. CIV. PRAC.
& REM. CODE § 121.004).
--TEX.GOV. CODE §405.019 requires Texas Secretary of
State to distribute a list of other U.S. states and territories
that require a notary seal (now on-line):
http://www.sos.state.tx.us/statdoc/notary-seal-list.shtml
When Notary Seal Is Not Required
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Notary’s taking of acknowledgement requires photo +
signature federal- or state-issued identification (TEX.
CIV. PRAC. & REM. CODE §121.005).
Two statutory alternatives are allowed:
--Foreign passport (but only in a “residential real estate
transaction”); or
--Affidavit of credible witness known to the notary who
vouches for the identity of the acknowledgor.
Acknowledgor’s Required Identification
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What defects in the certificate of acknowledgement are
“harmless error”?
--Missing state or county name in caption;
--Mistaken pronouns (e.g. “he” instead of “she”);
--Missing date of acknowledgment;
--Minor name variance, instrument vs. certificate; or
--Variance between captions, instrument vs. certificate.
Acceptable Defects in Acknowledgements
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What defects in a certificate of acknowledgement are
“fatal” to valid recordation?
--Omission of acknowledgor’s name from certificate;
--Significant name variance, certificate versus instrument;
--Omission of word “acknowledged” in the certificate;
--Notary’s/officer’s failure to sign the certificate;
--Absence of seal when seal is applicable; or
--Notary’s/officer’s disqualification evident on face.
Critical Defects in Acknowledgements
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If no suit raises the issue, a defective acknowledgement
is considered “cured” after two (2) years in the real
estate record.
--TEX. CIV. PRAC. & REM. CODE §16.033(a)(8):
Coverage for defective acknowledgements added in
1993.
--Statutory “cure” applies to EVERY instrument that fails
to show “an acknowledgement or jurat that complies with
applicable law,” including complete lack of a certificate.
Statutory Limitations Applicable to Defective
Certificates of Acknowledgement
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Three traditional approaches:
--Original notary public corrects defect in the certificate of
acknowledgment, and affected instrument is re-filed; OR
--Grantor re-acknowledges instrument before a different
notary public who attaches a new certificate, and affected
instrument is re-filed; OR
--Grantor executes full correction instrument with fresh
acknowledgement by same or different notary, which is
filed to replace instrument with the defective certificate.
Correcting Defective Acknowledgements--Old
School
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Under TEX. PROP. CODE §5.028(b), a Statutory
Nonmaterial Correction Affidavit can be used to correct
certificates of acknowledgement
--Acceptable affiant is anyone who witnessed the
acknowledgor’s act of acknowledging instrument.
--When acknowledgement was actually taken, Correction
Affidavit can address both either fatal or non-fatal defect.
--When NO acknowledgment actually taken? MATERIAL
defect falls under §5.029, requiring traditional cure.
Correcting Defective Acknowledgements--21st
Century
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Please note the following information which will be posted on our TIP page
• You are responsible for reading and understanding P-28 and for maintaining and providing your records to the TDI to renew your Escrow Officer license.
• Submit your request as soon as possible after completing this webinar, we date certificates as of the date they are received by us.
• Make sure your information is correct when submitting. If incorrect information was e-mailed, you may cross out the information and handwrite it on the certificate.
• Group/Multiple Certificate requests will be returned for resubmission - we can only accept requests with one person / one webinar per e-mail.
• Do not include any attachments/sign-in sheets for certificate requests – we will not process requests with extraneous materials but will return them to you.
• This course can only be used one time as long as it is current – it cannot be used in multiple renewal periods. See P-28a7g.
• If you are licensed with multiple companies, your TDI License number will be left blank on the certificate – TDI allows you to make multiple copies to fill in each employer/license information on separate certificates.
• Your certificate will be provided via e-mail. 26
To Receive CE Credit Each individual seeking credit hours must send their own certificate request to:
Please include the following information: • This Presentation Name in the Subject Line – “Acknowledge
the Knowledge” • In the body of your e-mail: Name of Participant; • Presentation PASSWORD given at the end of the webinar;
• License Number Only (located on left side of Escrow Officer Certificate of License – for example: License Number: 1234567-890123)
For Attorney CLE Credit also include: • Texas State Bar Number • Affiliation with Stewart
– Employed by Stewart Title Guaranty Company; – an affiliate; or – a Stewart agent
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If you haven’t received your certificate within
10 business days, please contact:
You can access the full webinar materials 10 business days
after the webinar at: www.stewart.com/texas
under the “Texas TIPS” tab
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Next Month’s Texas TIPS Online presentation is
February 18, 2016
“How To Be A Title Detective” presented by:
Bill Pratt
For Questions/Comments Email
or
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