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1.4.8 Closing and Settlement Agents or Attorneys

The mortgage loan closing or settlement (the terms are synonymous) is the final meeting at which all the transaction documents are signed. The loan contract is normally consummated at this time. The closing is usually conducted by an agent for the lender.362 The process varies widely by jurisdiction, especially when the transaction includes selling a home.

Often the lender’s agent is an attorney or a title company that contracts with an attorney. Supervision of the actual signing may be conducted by an attorney but is often delegated to a notary. The name and address of the closing agent is listed on the HUD-1 settlement statement or the closing disclosure. Homeowners are sometimes under the mistaken impression that the closing agent works for them. This belief is not surprising as the homeowner pays the agent’s bill for conducting the closing and other pre-closing activity, such as searching title and preparing documents. Whether the closing agent has any fiduciary duty to the homeowner is a question of state law.363

Footnotes

  • 362 {362} See, e.g., Garrett v. Fleet Fin., Inc., 556 S.E.2d 140 (Ga. Ct. App. 2001); Horvath v. Adelson, Golden & Loria, Prof’l Corp., 773 N.E.2d 478 (Mass. App. Ct. 2002).

  • 363 {363} See § 4.9 (regarding fiduciary duties and agency), Ch. 7 (regarding third-party charges and abuses), infra.