Research Trust Law in Your State: Trust officer must sign, not agent or servicer.
by Neil Garfield
It’s nice to be in the position where people do research and send it to me. It seems that Florida Statutes explicitly prohibit anyone other than an authorized trust officer who works for the alleged trustee to sign any oath, affirmation or certification.
That means that no agent claiming powers from the trustee can do so. The trustees is already an agent — and by statute the only agent — who can act on behalf of the trust, unless the trust agreement is amended or modified by the consent of the beneficiaries. The trustee either accepts the fiduciary responsibility or it doesn’t. If it accepts it is bound by statute. It cannot delegate those powers and then claim reliance on an agent or third-party vendor.
This means that any Oaths, affidavits, and acknowledgments must be signed by an officer expressly authorized by action of the board of directors of such trust company, association. And that means no third-party vendors, servicers, or agents, or even powers of attorney claiming the status of “attorney in fact.”
The trustee is in effect an attorney in fact. There can be no attorney in fact for an attorney in fact — unless the trust agreement explicitly gives the right to do so, in which case the existence of the trust is at least somewhat in doubt. If it were otherwise this would allow any trustee to divest itself of fiduciary responsibility and give all power to someone unknown or even explicitly rejected by beneficiaries and the original settlor or trustor.
It may therefore be fairly argued that any attempt to delegate such function is a breach of the statute and a breach of fiduciary duty to the beneficiaries of the trust. the homeowner has no standing to claim breach of fiduciary duty, but anyone can challenge any instrument that has not been properly subscribed by the trust officer of the alleged trust.
In fact, I think it can fairly be argued any such instrument is facially void and not facially valid. And that means that no legal presumption or assumption should be applied using the void instrument as the foundation.
And THAT leaves the foreclosure mill naked and afraid. They are done. For one thing, they have had no contact or contractual relationship with the named trustee or the trust.
Universal Citation: FL Stat § 660.35 (2012 through 2nd Reg Sess)
660.35 Oaths, affidavits, and acknowledgments.—In any case in which a trust company or the trust department of a bank or association is required to make an oath, affirmation, affidavit, or acknowledgment in connection with any fiduciary capacity in which it is acting or is preparing to act, the chair of the board of directors, the president, any vice president, any trust officer or assistant trust officer, the cashier or secretary, or any other officer expressly authorized by action of the board of directors of such trust company, association, or bank shall make, and shall subscribe if required, any such oath, affirmation, affidavit, or acknowledgment for and on behalf of such trust company, association, or bank.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 133, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 547, ch. 97-102.
Note.—Former s. 660.09.709.2201
Authority of agent.—
(1) Except as provided in this section or other applicable law, an agent may only exercise authority specifically granted to the agent in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority. General provisions in a power of attorney which do not identify the specific authority granted, such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent. Court approval is not required for any action of the agent in furtherance of an express grant of specific authority.
(2) As a confirmation of the law in effect in this state when this part became effective, such authorization may include, without limitation, authority to:
(a) Execute stock powers or similar documents on behalf of the principal and delegate to a transfer agent or similar person the authority to register any stocks, bonds, or other securities into or out of the principal’s or nominee’s name.
(b) Convey or mortgage homestead property. However, if the principal is married, the agent may not mortgage or convey homestead property without joinder of the principal’s spouse or the spouse’s guardian. Joinder by a spouse may be accomplished by the exercise of authority in a power of attorney executed by the joining spouse, and either spouse may appoint the other as his or her agent.
(c) If such authority is specifically granted in a durable power of attorney, make all health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.
(3) Notwithstanding the provisions of this section, an agent may not:
(a) Perform duties under a contract that requires the exercise of personal services of the principal;
(b) Make any affidavit as to the personal knowledge of the principal;
(c) Vote in any public election on behalf of the principal;
(d) Execute or revoke any will or codicil for the principal; or
(e) Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.
(4) Subject to s. 709.2202, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(5) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed and to property that the principal acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(6) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.