Posted by CAtitlegal on 6/6/05 4:25pm
Msg #42718

Altering an original ack...Legal/Ethical

I'm having a ethical/legal dilemna and hope you all can help. I'm quite sure it's not legal to alter/change/add to/delete from and original acknowledgement attached to an original document, by someone who did not notarize the same document. I just don't know where to find the law where it says it's illegal. I've searched the SOS site, handbook, etc. and I think it's probably either a penal or civil thing. (unless I missed it in the SOS info, and that's highly possible)

Can anyone tell me (whether your in CA or not, but CA matters in this situation) where to find it, or how it reads in your state?

Before you all go bonkers...I'm not practicing law, I'm not giving out information I shouldn't as a notary, etc. etc. I just need to know and can't find it.

Thanks in advance!

Reply by ERNA_CA on 6/6/05 4:42pm
Msg #42729

I have not come across anything that pacifically addresses this issue. Closed one I can think of is:
Government code 8221
Destruction, defacement or concealment of records or papers.
If any person shall knowingly destroy, deface, or conceal any records or papers belonging to the office of a notary public, such person shall be guilty of a misdemeanor and be liable in a civil action for damages to any person injured as a result of such destruction, defacing, or concealment.
Dose not say alter but could fall under defacement.

Reply by CAtitlegal on 6/6/05 4:46pm
Msg #42730

Perfect. (and I agree it could fall under defacement) that's all I needed - thank you so much, Erna.

Reply by ERNA_CA on 6/6/05 4:54pm
Msg #42733

Re: Altering an original ack...Legal/Ethical /yw CAtitlegal

Reply by Paul2/FL on 6/6/05 5:09pm
Msg #42738

I think it might fall under Forgery (see below) in the Florida Governor's Manual but I'm not a lawyer so take this with a grain of salt. I believe if PAW responds to this you will get a more accurate answer.

FORGERY
831.01 Forgery.—Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as a legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
831.02 Uttering forged instruments.—Whoever utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in s. 831.01 knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
PENALTIES AND FINES FOR VIOLATION OF NOTARY LAWS
775.082 Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison.—
(3) A person who has been convicted of any other designated felony may be punished as follows:
(d) For a felony of the third degree, by a term of imprisonment not exceeding 5 years.
(4) A person who has been convicted of a designated misdemeanor may be sentenced as follows:
(a) For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding 1 year; (b) For a misdemeanor of the second degree, by a definite term of imprisonment not exceeding 60 days.
775.083 Fines.—
(1) A person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082; when specifically authorized by statute, he or she may be sentenced to pay a fine in lieu of any punishment described in s. 775.082. A person who has been convicted of a noncriminal violation may be sentenced to pay a fine. Fines for designated crimes and for noncriminal violations shall not exceed:
(c) $5,000, when the conviction is of a felony of the third degree.
(d) $1,000, when the conviction is of a misdemeanor of the first degree.
(e) $500, when the conviction is of a misdemeanor of the second degree or a noncriminal violation.

Reply by PAW_Fl on 6/6/05 6:37pm
Msg #42777

There are quite a few possibilities at an attorney's disposal for altering documents. A major one, as you have shown Paul, is forgery, whether intentional or not. Of course, the alteration may simply be a correction to an existing document, which would not necessarily constitute forgery, but may fall under other statutes.

I am not familiar enough with the California statutes, nor all the Florida statutes to even offer a personal opinion. And, as I am not a licensed attorney in the State of Florida, I cannot offer a legal opinion.

Reply by CAtitlegal on 6/6/05 7:08pm
Msg #42791

Aww....c'mon, wing it. Go with the correction to an existing document.

Seriously, I'm dealing problem I'm not sure how to handle and 'correction' or 'fixing what's not there...but should be there' is also a big hint. I should say, there is no 'intent to defraud'.

Guys - not asking for anyone to play attorney - I want to point out the infraction of a law that could get someone in serious trouble if that someone continues his/her wicked ways, and I need the tool to do so. Any help is much appreciated.

Reply by Jon on 6/6/05 6:14pm
Msg #42764

If you are talking about a TC employee changing your cert or something similar, Gov Code 8227.1(c) states:

"It shall be a misdemeanor for any person who is not a duly commissioned, qualified, and acting notary public for the State of California to do any of the following:
(c) Purport to act as a notary public."

In my mind, changing a notarial certificate when you are not a notary, is acting as a notary and therefore illegal.

This is not legal advice, only my opinion.

Reply by Dana on 6/6/05 7:33pm
Msg #42799

Check out Penal Code 115.5.

Reply by Paul2/FL on 6/6/05 8:25pm
Msg #42801

I guess when I cited that this could possibly fall under the heading of "Forgery" (Florida Governer's Manual) I was thinking that the reason for the "doctoring" the original was to change it for a fraudulent reason. This was never specified so I jumped where I shouldn't have.

Reply by CAtitlegal on 6/6/05 8:36pm
Msg #42803

my apologies for not being clear enough before posting. There's no harm intended by this individual but its a practice I have a huge problem with as a SA (among other problems I have with it). Thanks for your input.

Reply by BrendaTX on 6/6/05 8:40pm
Msg #42806

**I guess when I cited that this could possibly fall under the heading of "Forgery" (Florida Governer's Manual) I was thinking that the reason for the "doctoring" the original was to change it for a fraudulent reason. This was never specified so I jumped where I shouldn't have.**
====

Maybe I am confused, but I think that CATitleGal was trying to figure out why something could not be done...I don't see how your answer was wrong...except maybe that it's FL law and not CA...but maybe she can find the CA law that corresponds if such exists.

It sounds like she is looking for a good reason to tell someone why not to doctor up a notary cert with a legal citing. Please, CAT...correct me if I am wrong.

=====
DISCLAIMER: And, as always, no one should ever take anything I say seriously especially where the law is concerned -- consider me a liar of the worst kind whenever I say anything about law. Alrighty then.

Reply by CAtitlegal on 6/6/05 9:41pm
Msg #42819

ditto on the disclaimer, and I need to clarify - my fault for that.

I'd like to point out to someone I know that the practice of filling in the blanks on an incomplete acknowledgement, or correcting the acknowledgement (that the SA didn't fill out properly) is illegal, and not to be treated lightly. The notary should be contacted to correct it, no one else should take that upon themselves.

For example, say the ack reads 'on this day, before me, _____left blank____, personally appeared, Jane Doe, blah blah. The rest of the acknowlegement is correct from this point. (Notary didn't fill in their name).

Or worse: on this day, before me ___the name of the borrower____ personally appeared ___the name of the borrower____ blah blah. The rest of the acknowlegement is correct from this point. (The notary filled in borrowers name, not their name).

Right or wrong, this happens alot. To me, once or twice a week. These are original docs that have slipped through everyones review, and its closing time. The problem of incomplete/incorrect acknowlegements halt the closing and everyone is ticked off. The problem is, it's the messenger of the bad news that takes the hit. So, the particular individual I'm concerned about will take it upon themselves 'fix it'.

Obviously this is a problem that needs to be presented to his/her boss as bad practice, but before it gets there, I'd like to point out the danger they're in, so it doesn't have to go that far. That's the problem behind the post.

Thanks for all the input, its appreciated.

Reply by Shannon on 6/6/05 9:57pm
Msg #42821

Is this person also a Notary? If so there could be more laws that are violated.

Reply by CAtitlegal on 6/6/05 10:00pm
Msg #42822

No, not a notary which I think explains the cavalier attitude about doing it.

Reply by Shannon on 6/6/05 10:10pm
Msg #42824

Do they initial the correction? What nerve. I've heard of title people calling and asking a notary if it was O.K. to add the date and such, which it isn't, but to just do it! Let us know what you find out!