Posted by JustANotary on 10/18/07 9:04am
Msg #217116

Selling papers using Credible Witness in California

I am asked by a loan rep I often work with to notarize her seller signing a grant deed. She has just moved & lost her drivers License. The title officer refuses to notarize her signing the grant deed saying the "county will not record it." Of course the county will not even know how the notary id the borrower so I am not sure why she would say that.

It is always ok to use credible witnesses right? This is ok to do even in the case of someone signing a grant deed to convey interest in their property correct?

Reply by Dave_CA on 10/18/07 9:39am
Msg #217121

No, it is not "always" OK to use CW.
The CA handbook lists the 5 conditions necessary for the use of CWs.
There is no restriction as to the type of document. Remember we are notarizing signatures, not documents.

Not legal advice. JMHO

Reply by CJ on 10/18/07 10:20am
Msg #217130

Two witnesses.

My understanding is: if someone does not have valid ID, (they lost it, it is expired, the name has a variation, they only have their Mexican ID, etc.), then you can use TWO adult credible witnesses with VALID IDs, to witness them: to say, "Yes, this is the person named in the documents." You get both of the witnesses in your book along with their ID, signature and thumbprint, and I note in my book that they are witnesses. I also get whatever I can on the signer too. For example, name, signature, thumbprint, and if they know their DL number.

You cannot use a subscribing witness for a GD, which is someone who appears on the signer's behalf.

Reply by Sylvia_FL on 10/18/07 10:34am
Msg #217131

Re: Two witnesses.

Florida notary laws on credible witnesses is the same wording as California.
The witnesses have to swear that the signer does not have ID and is impossible to get ID.

If the signer lost their ID, or has expired etc it is not impossible for them to get a new one (unless they are in a nursing home, hospital etc).

Reply by Dave_CA on 10/18/07 12:31pm
Msg #217156

Actually

The CA code is a bit looser than that and if you ask the SOS for clarification they are not any clearer.
What Government code section 8206 ... says, in part, is "The credible witness believes that the circumstances of the signer are such that it would be very difficult or impossible for the signer to obtain another form of identification."

This whole section is a mess and has been discussed to death with no clear consensus.
There are 5 conditions that ALL must be true including the one above and that "The signer does not posses any of the identification documents authorized by law to establish the signer's identity."
The people interpreting it strictly would almost never use a CW and yet the CA SOS notary section has repeatedly said that "difficult or impossible..." means at the time of the notarization... and that "does not posses ..." can apply to not possessing an ID in the required name. The example was a recently married lady who had not yet changed or renewed her DL.
So, she had an acceptable form of ID but not in the necessary name and she could not get another at the time of the signing.
The SOS notary section said that the use of CW was just fine...
Go figure.
I believe the section needs to be re-written but I'm not fighting that battle anymore.
If I'm comfortable that it is the correct person and there are 2 people with acceptable ID willing to swear to all 5 requirements I'll go ahead and notarize the signature.

Again, JMOO

Reply by Terri_CA on 10/18/07 1:27pm
Msg #217162

Re: Actually

The CW Swears to those things, they are not conditions which must be met or proven to the notary. According to Paul Bresnan, head of the Notary Division, it's the CW who takes the oath or affirmation, and who swear/affirm that the person named on the document is the person in front of the notary. CA notary Law says that the Notary can accept the oath of the CW as identification of the document signer. The onus is on the CW.

It is not up to the Notary to determine, ask for or require proof of the items that the CW is swearing is true. That is UPL for the notary. If two persons are willing to swear to those things, then the Notary is to accept it. Not do so could mean that the notary is refusing to perform a lawful notarization. And to refuse a lawful notarization is not performing your duties as prescribed by law and could be suspension or revocation of your commission and a $750 fine for negligent failure to perform your duties or $1,500 for willful failure.

When performing a CW notarization, I do advise the CW's that they are swearing/affirming to the identity of the signer and that if the signer's identity is questioned, they would be contacted. Once they acknowledge their understanding I proceed with the completion of their information in my journal, I get their signatures and I give them the oath/affirmation.

Again, it is not the notary's duty or responsibility to make any determination that the items that the CW's are swearing to are proved. These are not "conditions that must be met and proved to the notary." They are things that the CW swears is what is, that's all.

Terri
Lancaster, CA

Reply by JanetK_CA on 10/18/07 2:55pm
Msg #217174

Re: Actually

Right or wrong, I take this a step further. I've created a 1-page form for myself that has at the top a list of the the criteria that the CW must swear to, using the language right from the handbook. There is also a line where I put the name of the person being IDed as it is in the document. I have both CWs read it, sign and print their name on this page, in addition to signing my journal. And of course, I administer the oath. I treat it as a jurat (with the appropriate verbiage on the bottom), to try to give the process maximum import. I always retain these pages myself and don't ever give copies to anyone. It is simply a mechanism that I use to make sure the CWs are taking this seriously and of documenting that I have properly followed correct procedure.

Sometimes, though, I still don't feel comfortable about the CW process. And if I have a doubt about the ID situation, I may not mention it as an option (e.g. if someone has a fake ID, I wouldn't use the CW option to get around it!)

I don't necessarily recommend this to anyone or not (don't want to get into UPL), but this is just my approach.

Reply by Terri_CA on 10/18/07 3:34pm
Msg #217185

Re: Actually

My only concern with this additional form, is that you prepared it yourself, and chose the notary wording. No I'm not saying you don't know what you're doing or even disagreeing with the practice. I'm saying that could be considered UPL is all, it's what crossed my mind when I read the post.

I understand that we all want to protect ourselves, but I think we can go overboard with it.

Questions, where do you keep this document once the notarization is complete?

Terri
Lancaster, CA

Reply by JanetK_CA on 10/18/07 3:53pm
Msg #217189

Re: Actually

I appreciate what you're saying, Terri. It's because of UPL concerns that I consider this for my own personal use, not to ever be provided to any third party. I keep the signed forms in an evelope with my journal. I would NEVER return anything like this with the doc package (or provide a copy to anyone else). I just consider it a way to ceremonialize (I think I just made up a new word!) the process and make sure the credible witnesses read for themselves what the requirements are and understand what they are swearing to.

Before I started using these forms, I found people sometimes were a little too casual about it, cracking jokes, etc., with the person they are IDing. I consider this a pretty serious process and using this seems to have produced the desired effect. Again, I'm not necessarily advocating anyone else do this, nor would I be willing to provide copies. But I do advocate some method of adequately communicating the requirements and responsibility of what the CWs are doing.

BTW, the choice of notary wording is because the handbook clearly states that the CW should take an oath as to the person's identity.

Reply by BrendaTx on 10/18/07 4:04pm
Msg #217192

Re: Actually

I don't see how that can be practicing law as long as it is only for the notary's records.

Reply by GWest on 10/18/07 7:06pm
Msg #217214

Re: Actually

I actually do the same thing. I have an Affidavit form that the Credible Witnesses sign, swearing to the items listed (word for word) in the California Handbook. I obtain their ID, have them sign my book, obtain a thumb print and have them sign the affidavit (which I notarize). I keep the form stapled to that page in my notary book.

Reply by MikeC/NY on 10/18/07 8:08pm
Msg #217220

Re: Actually

<< My only concern with this additional form, is that you prepared it yourself, and chose the notary wording. No I'm not saying you don't know what you're doing or even disagreeing with the practice. I'm saying that could be considered UPL is all, it's what crossed my mind when I read the post.>>

Why would it be considered UPL?

If you're creating a form for your own use only (as appears to be the case here), it's not UPL.

Anyone can apply their knowledge of the law to their own circumstances. You cross the line into UPL when you attempt to apply that knowledge to someone's specific situation - telling them (or even suggesting) whether to use a jurat or an acknowledgment, for instance.

Taking that self-made form and adding it to the loan package to prove whatever about the CWs could very well be considered UPL; taking it for your own records and not sharing it with anyone else would not be. It may not stand up in court as evidence, but that's a different story that has nothing to do with UPL.

Reply by JanetK_CA on 10/18/07 9:45pm
Msg #217233

Re: Actually

I agree with your reasoning, Mike. I've been hesitant to even mention it for fear someone would misinterpret it, which I'm guessing was also Terri's fear, but I think you've done a better job than I did of communicating where the line needs to be drawn. (BTW, I just tape a letter size envelope to the inside back page of my journal, fold them up and keep them in there.)

One other thought -- someone mentioned something about checking with the lender which I also agree is a good idea. There are some lenders that won't accept that as ID and if there are Patriot Act forms to complete, there isn't usually a line for credible witness info! (And again reiterating Mike's point, I would NEVER attach my form to an ID aff or other Patriot Act form or even mention it to the client.) Good idea to check in advance, on the few occasions when that's possible, or disclose use of CW after the fact.

Reply by Kate/CA on 10/18/07 3:09pm
Msg #217179

Re: Two witnesses.

I agree. One of the test questions on the SOS exam was that a woman lost her purse with her DR LIC, the question was multi choice, one answer being use two creible witnesses. The other answer were such things as use a credit card for ID, nothing that is in the handbook or could possible apply.

Reply by CaliNotary on 10/18/07 4:04pm
Msg #217191

I wouldn't touch it with a 10 foot pole.

Having someone sign away their interest in a property and not even see an ID? Do you really want to be the notary on the deed if it's discovered that the credible witnesses lied and that there was actually fraud committed? There's no way in hell I would notarize this.

Reply by Linda Spanski on 10/18/07 6:35pm
Msg #217203

get the lender's OK first

Older folks who no longer drive, the disabled... sometimes their IDs are expired. I call the TC and they ask the lender if CWs are acceptable. If so, then we troop around the neighborhood looking for neighbors who are home and willing to swear. It can be very time-consuming but I've never yet sensed fraud.

Reply by CaliNotary on 10/19/07 1:55am
Msg #217245

Re: get the lender's OK first

I'm not talking about those who meet the true criteria of it being very difficult or impossible to get a valid ID, I'm talking about situations like this where somebody just doesn't have one and hasn't gotten it replaced yet, or hasn't bothered to change their name on their ID.

Anyone can say "oh, I lost my license" if they're trying to commit fraud. It's much harder to fake being a 90 year old invalid (but not impossible). I think it's best to err on the side of extreme caution when the result is the title to a property being transferred.