Baltimore, MD asked in Consumer Law, Foreclosure, Real Estate Law and Securities Law for Maryland

Q: Can a settlement agent who signs a loan application also be the notary and witness on a deed of trust.

Seems to be to many roles and a conflict of interest, fraud or unethical. I read somewhere that only an attorney can prepare deeds of trusts.

3 Lawyer Answers

Richard Sternberg

  • Potomac, MD
  • Licensed in Maryland

A: If the notary is applying for the loan, he cannot notarize his own signature. Almost all settlement agents are notaries. And, notaries can of course be a witness. That’s pretty much what a notary is: a witness to the authenticity of a signature. Maryland Law does require deeds and deeds of trust to be prepared under the supervision of a lawyer, but there is a loophole that you could sail a battleship through. If you doubt the enforceability of your deed of trust, you can ask a Maryland lawyer to obtain and review a title search.

Cedulie Renee Laumann agrees with this answer

Thomas C. Valkenet

  • Baltimore, MD
  • Licensed in Maryland

A: Anyone can prepare a deed of trust. That is a different question. Also, almost anyone can witness a signature. But only an attorney can execute the lawyer's preparer affidavit (if the lawyer was involved).

Cedulie Renee Laumann

  • Crownsville, MD
  • Licensed in Maryland

A: As Mr. Sternberg noted, a notary cannot witness their OWN application but they most certainly can witness any other borrower signing that and the host of other documents a borrower signs at a closing. A notary who witnesses documents to get title insurance must also be a licensed title insurance producer but there is nothing unethical about a notary being the only witness to the various loan and closing documents.

A notary cannot sign as the preparing attorney unless they are in fact also a licensed attorney who prepared (or supervised the preparation of) the documents. Oftentimes the attorney preparing the Deed (and/or the Deed of Trust) will do so separately, and not at the settlement table. Maryland law requires that a Certificate of Preparation be attached and signed before certain documents can be recorded in land records, but that doesn't mean the attorney is signing at the same time as the other party(ies).

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