Warranty Deed Notarized 1.4 Yrs Ago

[Grammarhero]

@Eric B @sjsharkie @Passepartout
As recommended by NY Bar Ethics Hotline, I contacted the VA Bar Ethics Hotline as the recorded deed falls under their geographic area. VA Bar Ethics Hotline gets this inquiry a lot, probably because of all the TS in Williamsburg, VA Beach, and Massanutten.

VA Bar will give the VA attorney an one-time pass on this situation as long as the Va attorney insisted on recent notarization. However, moving forward, the VA attorney should demand recent notarization moving forward.

If the VA attorney has multiple instances of this situation or did not insist on recent notarization, VA attorney risks public reprimand to two week suspension.

Compared to NY ethics counsel, VA ethics counsel has more knowledge about the TS resale industry and standard practices and, thus, is more lenient to VA attorneys involved in this situation.

 

[dioxide45]

@Eric B @sjsharkie @Passepartout
As recommended by NY Bar Ethics Hotline, I contacted the VA Bar Ethics Hotline as the recorded deed falls under their geographic area. VA Bar Ethics Hotline gets this inquiry a lot, probably because of all the TS in Williamsburg, VA Beach, and Massanutten.

VA Bar will give the VA attorney an one-time pass on this situation as long as the Va attorney insisted on recent notarization. However, moving forward, the VA attorney should demand recent notarization moving forward.

If the VA attorney has multiple instances of this situation or did not insist on recent notarization, VA attorney risks public reprimand to two week suspension.

Compared to NY ethics counsel, VA ethics counsel has more knowledge about the TS resale industry and standard practices and, thus, is more lenient to VA attorneys involved in this situation.

Is Sumday using an attorney to prepare their deeds?

 

[Grammarhero]

Is Sumday using an attorney to prepare their deeds?

No, I was referring to VA Attorney buyers. It’s frowned upon for attorney buyers to do nothing knowing that there is a Warranty Deed notarizing a sale as having occurred months to years before such sale actually occurred.

 

[Herbaltees]

Deed will more then likely be rejected by Wyndham. I had one about 6 months ago with dates of notary stamping and my signing differing 3/09 vs 3/19. It was rejected and had to be corrected with new deed being recorded.

I am in a similar situation. I just received a copy of the warranty deed. The letter is dated January 2020, but the signatures were notarized in September. The sellers are in Canada.

Will the lapse/difference in dates make a difference? Will Wyndham allow this to go through?

 

[JimS]

I am an older attorney who understands your concern about ethics, disciplinary rules etc. However, if a deed must not only be executed but also delivered for a conveyance to be valid, why couldn't a seller execute, acknowledge his signature (notarize) and deliver the deed in escrow to Sumday with instructions and power of attorney to fill in the name of the buyer? The deed has been executed and delivered. I see nothing wrong with that. Some PCC execute deeds by POA as attorney in fact in behalf of the seller and in that case, the POA must be recorded as well. A true backdating would be signing an undated deed and then filling in the information with an acknowledgment that purports the seller appeared before the notary etc. on the date referenced in the deed. Another solution for Sumday might be a straw party deed but of course two deeds incur two recording fees and transfer taxes.

 

[funtime]

Unfortunately this would pass muster with 90% of buyers and most timeshare management companies. I too have had deeds with backdates that I only was able to examine after they sent me the recorded document. That is, the deed was deeded to "me" before I purchased it. I am not a lawyer and the timeshares are not worth very much so I shrugged my shoulders. But it does happen quite a bit. It did not affect my enjoyment of the timeshare.

 

[Grammarhero]

I am in a similar situation. I just received a copy of the warranty deed. The letter is dated January 2020, but the signatures were notarized in September. The sellers are in Canada.

Will the lapse/difference in dates make a difference? Will Wyndham allow this to go through?

Wyndham might not allow to go through. Stay tuned.

 

[Eric B]

I am an older attorney who understands your concern about ethics, disciplinary rules etc. However, if a deed must not only be executed but also delivered for a conveyance to be valid, why couldn't a seller execute, acknowledge his signature (notarize) and deliver the deed in escrow to Sumday with instructions and power of attorney to fill in the name of the buyer? The deed has been executed and delivered. I see nothing wrong with that. Some PCC execute deeds by POA as attorney in fact in behalf of the seller and in that case, the POA must be recorded as well. A true backdating would be signing an undated deed and then filling in the information with an acknowledgment that purports the seller appeared before the notary etc. on the date referenced in the deed. Another solution for Sumday might be a straw party deed but of course two deeds incur two recording fees and transfer taxes.

The first portion matches my thoughts on the subject. The straw party aspect would put Sumday on the hook as owning the timeshare, though, which I don't think they would want. Might be a good justification for the high upfront fees some brokerage services charge for getting you out of a timeshare, but they never really do that because of the risk of not being able to get rid of it.

 

[JimS]

"A straw party relationship consists of a straw man (also known as a nominee or agent) and a principal (also known as a beneficial owner). A straw man has been defined to mean a mere conduit or medium for the convenience of holding and passing title to real estate. It has been stated that a straw man is a person who holds naked title for the benefit of another. When a straw party holds real estate for the real party in interest, all incidents of ownership except record legal title are with the real party in interest."[Matthew Bender & Company, Inc., Real Estate Financing § 2C.01 (2003)]

If the deed from the seller recites that Sumday is merely a conduit or straw party, there is no risk for Sumday. The deeds are recorded simultaneously and the grantee on Sumday's deed is presented to the resort with both recorded deeds. So long as the MF are current, the transfer fee is paid and the Buyer/new owner requests that the interval be placed in his name, I cannot picture any resort denying the transaction.

 

[Grammarhero]

I am an older attorney who understands your concern about ethics, disciplinary rules etc. However, if a deed must not only be executed but also delivered for a conveyance to be valid, why couldn't a seller execute, acknowledge his signature (notarize) and deliver the deed in escrow to Sumday with instructions and power of attorney to fill in the name of the buyer? The deed has been executed and delivered. I see nothing wrong with that. Some PCC execute deeds by POA as attorney in fact in behalf of the seller and in that case, the POA must be recorded as well. A true backdating would be signing an undated deed and then filling in the information with an acknowledgment that purports the seller appeared before the notary etc. on the date referenced in the deed. Another solution for Sumday might be a straw party deed but of course two deeds incur two recording fees and transfer taxes.

For their credit, Sumday did contact seller to notarize a contemporaneously dated deed. Seller refused and thought they were done with TS.

I also don’t know why Sumday doesn’t do as you suggest. Maybe an extra step incurring escrow fees hurting their bottom line and risking jobs?

 

[Eric B]

That would work, @JimS. Not sure TS exit companies are that sophisticated, though.

 

[JimS]

Grammarhero highlighted a problem people need to consider when they purchase a resale.

 

[JimS]

I am sure this happens more than we realize but not with a not-so-recent acknowledgment. What's the difference between signing and acknowledging in blank 60 days ago as opposed to two years ago? In either case, the buyer's name is filled in when buyer is found without any involvement of the Seller. Surprised Grammarhero's owner refused to sign a contemporaneously dated deed. Don't know what deal was with Sumday and future maintenance but Sumday should have said, OK, you still own it and owe maintenance.

 

[Grammarhero]

I am sure this happens more than we realize but not with a not-so-recent acknowledgment. What's the difference between signing and acknowledging in blank 60 days ago as opposed to two years ago? In either case, the buyer's name is filled in when buyer is found without any involvement of the Seller. Surprised Grammarhero's owner refused to sign a contemporaneously dated deed. Don't know what deal was with Sumday and future maintenance but Sumday should have said, OK, you still own it and owe maintenance.

The deed was already transferred and filed. So when Sumday asked the sellers to notarize contemporaneously, sellers refused saying they were done with the TS.

The NY Bar was concerned of a possibly misrepresented, backdated deed with possibly misrepresented, incorrect backdates. The VA Bar was understanding, saying they get this issue all the time, but don’t do it again. With all the VA TS in VA (i.e. Williamsburg, Massanutten, VA Beach), the VA Bar seemed aware and informed on the issue.

As I understand it, the VA Bar gave me a “Get Our of Jail Free Card,” but not the NY Bar. Thus, I cannot have another transaction like this.