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Commonwealth of Massachusetts

Public Reprimand No. 2010-26



KEITH A. MCMANUS

Order (public reprimand) entered by the Board September 23, 2010.

SUMMARY1


The respondent engaged in professional misconduct in a real estate refinance transaction.

In 2007, the respondent was retained to represent a lender in a refinance transaction. The property to be refinanced was a second home and jointly owned. Both owners were joint borrowers on the prior mortgage loan existing at the time of the refinance. Only one of the owners applied to refinance the property as the sole borrower in the 2007 transaction. In the refinance, the sole borrower applicant sought “cash out” for the net proceeds over the existing mortgage balance.

At the borrower’s request, the respondent conducted the entire transaction through the mail. The respondent did not request permission to conduct the closing through the mail from the client lender and was not authorized by the lender to do so. The “mail away” closing was also inconsistent with the client lender’s closing instructions, which required the respondent to notarize the borrower’s signature on the mortgage and to ensure that the co-owner of the property signed the mortgage in order to give the lender an enforceable first mortgage.

The respondent mailed all closing documents by overnight mail to the borrower at her business address at her request on December 18, 2007, with instructions to sign the documents, date the documents December 21, 2007, and return them by overnight mail. The borrower was also instructed to sign certain documents in front of a notary and provide a copy of her identification with the documents upon return. The respondent also advised the borrower that the mortgage and Truth-in-Lending disclosure statement needed to be signed by the co-owner of the property as well as the borrower.

When the documents were returned by the borrower, the borrower’s signature was notarized on the mortgage; however, the signature of the co-owner was not notarized. Both the mortgage and the Truth-In-Lending disclosure returned by the borrower appeared to contain the initials and signature of the co-owner, but the co-owner has claimed that the intitials and signature on these documents were, in fact, forged. The respondent never contacted or discussed the refinance with the co-owner. The co-owner did not consent to the refinance and was unaware that it occurred until several months later.

Upon receipt of the closing documents from the borrower, the respondent signed the mortgage attesting to the borrower’s signature. The respondent also notarized the borrower’s signature on the UFFI certification and the Compliance Agreement outside of the presence of the borrower, certifying that the borrower had personally appeared before him, that this was proved to him through satisfactory evidence of identification by her driver’s license and that the borrower acknowledged that the documents were signed voluntarily for their stated purpose. The respondent also signed the Customer Identification Verification, thereby certifying that he personally had examined the borrower’s driver’s license and that it appeared to be genuine. In fact, the respondent had only been provided with a photocopy of the borrower’s driver’s license, did not meet with the borrower at any time relative to the closing of the refinance and did not personally witness the borrower sign any of the closing documents.

The respondent issued a check payable only to the borrower for the cash-out proceeds of the refinance, which was negotiated by the borrower. The co-owner has filed suit against the lender and borrower claiming that her signature on the closing documents was forged and seeking rescission of the mortgage.

By permitting the closing to take place by mail without the lender client’s consent, in failing to assure that the co-owner signed the mortgage and failing to provide his client with a fully secured and enforceable mortgage, the respondent’s conduct violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, and 8.4(h). By notarizing the signature of the borrower and in witnessing the borrower’s signature on the mortgage outside of her presence, and in certifying on the Customer Identification Verification that he personally had examined the borrower’s driver’s license and that it appeared to be genuine, the respondent violated Mass. R. Prof. C. 8.4(c) and 8.4(h).

The respondent has been in practice since 1996. He has no disciplinary history.

On August 5, 2010, bar counsel commenced disciplinary proceedings before the Board of Bar Overseers by filing a petition for discipline. On the same date, bar counsel and the respondent filed Respondent’s Answer to Petition for Discipline and Stipulation of the Parties, in which the parties recommended that the respondent receive a public reprimand. On September 13, 2010, the Board of Bar Overseers accepted the parties’ recommendation and imposed a public reprimand.


1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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