By Victor Kang, Esq.

Rubin Lublin, LLC *

USFN Member (AL, GA, MS, TN)

Often, one of the roadblocks that faces any new change is the retort of “If it ain’t broke, don’t fix it.”

As part of creating a more inclusive and accepting culture in our industry, one of the pain points of a seemingly harmless and simple adjustment is using more inclusive pronouns. While some might roll their eyes at the prospect of having to use “new” pronouns like they/them, the unexpected benefit of this transition is that documents and templates can actually be easier to produce. As our industry moves toward a sense of normalcy, one of the most common issues we have seen involves the need to process increased volume timely and uniformly. Most firms, servicers, and vendors all now rely on fully integrating communication, document requests, and processing of files.

The days of paralegals and attorneys having a mishmash of legal templates are quickly joining the ranks of Dictaphones and typewriters as being obsolete in this new reality of instant uploads and drafting of documents. Below are some practical suggestions on how to modernize legal documents that serve to create efficiencies, reduce errors, and establish more inclusive language.

As legal definitions of marriage change and evolve, along with gender identity, we have seen the loan application process evolve in tandem. Forms are now becoming gender neutral. We recommend that lenders who use their own proprietary application forms adopt the Uniform Residential Loan Application that is used by GSEs. These forms avoid fields focused on gender or marital status, such as a prefix (Mr., Ms., Misses, etc.) or terminology like husband and wife. Alternatively, if forms require some type of honorific, you can use a more inclusive term, like “Mx.”

Newer systems often have updated fields that account for gender-neutral terms. We recommend reviewing older systems to avoid creating inefficiencies or additional guesswork by requiring fields like “husband” or “wife” to be completed. If state laws require marital status, these fields can be updated to say “spouse/partner.”

The biggest potential area for improvement and time savings can be realized by removing the need to use gender-specific terms in your templates. For example, the state of Alabama requires the marital status to be listed on mortgages and deeds of transfer. In the past, this may have been viewed as a very simple process – you’re either married or single, and the legally accepted categories were just husband and wife. Mortgages will often be written out to say “John Doe, a married man, and Jane Doe, a married woman” or some iteration of “John Doe and Jane Doe, husband and wife.” However, our firm has had to file title claims on mortgages where the language was incorrect because names might have been gender neutral (i.e. Billy Smith and Taylor Smith), and the husband and wife titles were swapped. Or, in cases where names are based on other languages/cultures, it may not be abundantly clear which name is meant to be for which party. Further, many spouses may choose not to take their partner’s name or come up with a new last name altogether. In another instance, we had a foreclosure file rejected in the REO stage because the mortgage had listed “X and X, husband and husband.” The closing attorney said there was a typo on our foreclosure deed; needless to say, we had to inform them that there was no error.

To avoid these issues, we suggest modifying pre-filled templates for pleadings, deeds, letters, etc.… with “Mr./Mrs.” or him/her, replacing that language with pronouns such as they/them and dropping salutations altogether. Start letters off with the name of the borrower, and you can avoid having to guess at what greeting to use. On deeds where you must convey to the Secretary of HUD or VA, update templates to state that “they” are the Secretary, and that title is being conveyed to “them.” Not only does it avoid having to switch your template from stating “him” to “her,” depending on who the active Secretary is, using them/they can avoid any need to update. This change in standard can also help post-foreclosure cleaning houses from having to nitpick as to what a recorded deed’s language states.

Even in documents that must be filed where you may have to name unknown parties, you can avoid using Jane or John Doe by simply using “Person Doe” as a substitute. Changing the terminology to be gender neutral can also avoid uncomfortable missteps when you address the parties in court. For the litigators, it might require a change in terminology to say “folks” or “jurors,” instead of saying “ladies and gentlemen of the jury.” As juries are to be made up of members of the community, appropriate terminology for their identity is not only the right thing to do, but it could also help sway their opinions if you address them with respect and acceptance. And, while it may seem uncouth in certain parts of the country to not end sentences with “sir” or “ma’am” when attempting to show respect, this may be a situation where the “Golden Rule” might not apply. While you personally may want to feel respected by being addressed as “sir” or “ma’am,” this opinion may not be the same for others in the courtroom or in the deposition room. If you genuinely want to respect those with different backgrounds, be cautious about forcing your viewpoint of what being respectful means onto others.

               As with any change, it will take time and repetition to overcome years of custom. But, even if there may be disagreement over the reason why these changes are necessary, there can be little argument that we can avert inefficiencies and unintended grievances by avoiding the use of antiquated terminology. In this post-COVID world where remote work, virtual closings, diverse global clientele, and automated referrals are the new norm, having to guess at the appropriate terminology based on voices, appearances, or names is neither effective nor respectful.

From a business perspective, countless hours of document revisions, apologies for unintended misnomers, and potentially lost customers can result from trying to box people into gender-specific terms. If we move toward using gender-neutral terminology, we all can benefit from the continued evolution of the English language.

@Copyright 2022

USFN Report - Spring 2022