Posted by JustANotary on 6/15/08 2:09pm
Signing with a mark in California
I had a borrower that signed with a mark. I had two people sign as witnesses, one signed the borrower's name & then their own name, the other witness just signed their name. I put only the borrower's name in the notary field. The title company is asking for an acknowledgment with the borrower & the two witnesses listed. Only the borrower should be listed in the notary field right? Unless the law has changed, my understanding is that I do not even have to identify the witnesses, so I certainly can not notarize that I know they signed if I did not even have to ID them.
Reply by Sir_Lawrence on 6/15/08 2:15pm
Wow big difference here in Ohio. I would have ID'ed the 2 witnesses and Had them sign a jurat and attached it to the doc with the "x". Each doc with an "X" would have an Ack or Jurat attached. But...that's just me & Ohio.
Reply by GWest on 6/15/08 2:25pm
Per the 2008 Calif Notary Handbook, page 16:
The witnesses are only verifying that they witnessed the individual make his or her mark on the document. A notary public is not required to identify the two persons who witnessed the signing by mark or to have the two witnesses sign the notary publicís journal.
Just a side note: I also handled one like this recently. The title company did require I notarize the witnesses signature, but they advised me up front, so I ID'd them and had them sign my journal.
Reply by GWest on 6/15/08 2:31pm
Should have added
Exception: If the witnesses were acting in the capacity of credible witnesses in establishing the identity of the person signing by mark, then the witnessesí signatures must be entered in the notary publicís journal.
ē The signer by mark must include his or her mark in the notary public journal. To qualify
as a signature, the making of the mark in the notary public journal, must be witnessed by
an individual who must write the personís name next to the mark and then sign his or her
own name as a witness.
Reply by Gary_CA on 6/15/08 8:20pm
Notarized the wittness how???
Ack--- that he executed what? certainly he didn't execute the document he witnessed.
Jurat -- that he swore to what??? I suppose he could make an affidavit about wittnessing the signer that you could notarize.
The title company just wants to CYA but there's really not much to notarize.
I've done signature by mark once... but I didn't notarize the witnesses.
Reply by MistarellaFL on 6/15/08 8:28pm
WTH would they need a self-proving affidavit for this?
makes no sense....except for lack of understanding of the lack of need.
Reply by Gary_CA on 6/16/08 7:21am
I think I understand the lack of sense...
I wasn't suggesting it was a good thing to have such a silly affidavit... just that we can only notarize signatures that swear to or execute something...
Unless I'm stupider than I think I was just saying there's no way in hell you can notarize a wittness signature... they don't execute the document they sign.
5:17am no coffee... if I totally stepped in it the good news is I still can't see it on my feet yet.
Reply by GWest on 6/16/08 11:33am
Re: I think I understand the lack of sense...
The witnesses execute a statement included on the document which states:
_____________(Name of Signer), being unable to wirte, made his/her marke in our presence and requested the first of the undersigned to write her/her name, which he/she did, and we now subscribe our names as witnesses thereto.
Reply by GWest on 6/16/08 11:49am
Sorry for the typo's- busy morning no coffee yet
should read "being unable to write, made her/her mark"
Reply by GWest on 6/16/08 11:51am
I can't believe it - I'm getting some coffee now!!
"Being unable to write, made his/her mark"
Reply by MichiganAl on 6/15/08 5:36pm
Copy the statute
I've had a few title companies disagree with me on how to handle I.D. issues. I've always found it helpful to copy and send the applicable statute to them so there's no doubt. Having irrefutable documentation stops the disagreement in its tracks.
Reply by JustANotary on 6/15/08 6:08pm
Re: Copy the statute
Thank you for everyones help. I do not know why a title company thinks they can require an acknowledgment for the witnesses when that is not what the state law calls for. They sign the signature page of the DOT, but they are not the signer, they are witnessing the signer.
Reply by PAW on 6/15/08 9:07pm
Re: Signing with a mark in California - In Florida ...
...SIGNATURE OF WITNESS...
...Printed name/address of Witness...
...SIGNATURE OF WITNESS...
...Printed name/address of Witness...
STATE OF FLORIDA
COUNTY OF (county)
The foregoing instrument was acknowledged before me this ____ day of __________, _____ by __JOHN DOE__, who signed by way of a mark in the presence of these two witnesses and who produced (type of identification) as identification.
...SIGNATURE OF NOTARY...
...Printed name of Notary...
I have had some attorneys make the certificate to read:
The foregoing instrument was acknowledged before me this ____ day of __________, _____ by __JOHN DOE__, who signed by way of a mark in the presence of ___________________ and _____________________ (witnesses).
Reply by JustANotary on 6/16/08 12:34am
Should I refuse to comply with the title companies request?
My thinking is I can not comply with the title companies request as I do not see that a notary in California can add the names of the witnesses to the DOT acknowledgment. The witnesses did not put their signatures as SIGNERS of the DOT, they just signed as witnesses. If I issue an acknowledgment I am saying that I know that they signed the DOT, but I know that they did not sign it, they witnessed that someone else signed it. What do you all think?
Reply by CaliNotary on 6/16/08 3:16am
Of course you should refuse
Their wishes don't supercede CA law. Just tell them it ain't gonna happen and why, and when they inevitably throw a hissy fit just keep repeating "the law doesn't allow me to do it".
Reply by PAW on 6/16/08 6:47am
I would refuse
CA law is very particular, even more so than Florida. Your certificate is your certificate and must conform to CA law. Period. No discussion.
If you want more ammo, call the county recorder and ask for direction (and document who, what was asked/answered and when).
Just for the record, I've never had to include witness names on a DOT or Mortgage acknowledgment, nor have I ever seen it done in any state.