Posted by SamIam_CA on 5/10/05 9:31pm
Msg #37053

They can be so tricky - but I caught them!

I was doing a loan tonight where none of the notarial wording was correct for California. I

almost attached an acknowledgment to an occupancy and financial status affidavit -

but then I saw it - hidden in the text - not the notary section were the words

"the borrower having been duly sworn according to law an upon oath deposes and says"

blah blah blah. Would have been nice if there was something in the certificate portion! The

borrower is related to two notaries. Said they have never heard or seen the oath before

It took 5 separate jurat forms to get this one squared away.

Reply by Timothy Gatewood on 5/11/05 10:36am
Msg #37089

The first clue here was the document title -- the word "Affidavit" in the title of any document should have you reading it to see if it contains the wording that actually makes it an affidavit. I have had clients who put a dozen or more Affidavits in a package and the notary wording on NONE of them was correct; in fact, it said they did not take an oath, despite the wording at the top of the doc saying they were sworn or upon oath or such like. So, adding a "loose" jurat is pretty common. Of course, it should not actually be loose after you fill it out -- you should staple it to the doc.

At least, that is what all the authorities I have consulted have told me.

-- Tim Gatewood, CNSA, NotaryMemphis.com
Member, NNA, NSA Section
Member, The Signing Registry
http://notarymemphis.com

Reply by Joan-OH on 5/11/05 10:58am
Msg #37091

I have to disagree here....or maybe totally misunderstanding. Correct me if I am. I know in FL, they are to add a jurat if it is a sworn statement, irregardless of what we do in different states. But I also think they are unique in this requirement. I see these non-jurats regularly and usually on the junk docs. At the top of the document, they call it an affidavit, but it is clearly an acknowledgement on the bottom of the document, proved by the "acknowledged.......who did not take an oath" written right on it. Unless my state laws call for me to switch it out to a jurat, like FL, I'm not going to do it.

It just is not my job to decide what kind of certificate goes on the document. That would be the job of the document author and the decision has been made by putting an acknowledgement there. Further, unless you are in a unique situation like FL, I would be very careful in "choosing" the certificate that belongs there. Of course, if it was a non-compliant acknowledgement, I would switch is out with an Ohio compliant acknowledgement, but never a jurat unless the people who hired me told me to.

Joan-OH

Reply by Bill on 5/11/05 12:15pm
Msg #37121

I agree, wouldn't that be UPL

I agree, why wouldn't switching it out not be UPL. If they have a acknowledgement, I don't feel it is my place to just change it.

Reply by Terri - CA on 5/11/05 11:12am
Msg #37095

Regardless of the wording in the body of the document; and regardless of the title of the document. If the verbiage in the certificate indicates that it's an acknowledgment, that's what you provide. It is UPL for a California notary to determine what type of certificate is to be used. It's up to the signer or preparer of the document to make that determination. If the notary cannot make a clear determination based on the wording in the certificate provided then they should contact the document preparer.

While we learn from experience what should be used, California Notaries still cannot make that call. You must used what is presented, or ask what should be used. Don't decide for yourself.

Terri
Lancaster, CA

Reply by ERNA_CA on 5/11/05 11:25am
Msg #37102

I just love those forms that leave you cross eyed and asking . What are they looking for is it a acknowledgment or a jurat. You should think they would keep the law in mind when choosing the wording, sure would make our life easier.

Reply by SamIam_CA on 5/11/05 12:31pm
Msg #37126

Re: They can be so tricky - but I caught them! or did I?

***It is UPL for a California notary to determine what type of certificate is to be used.***

Oh man! I was so proud of myself too - but you are right. The document was worded like a jurat, but the certificate was sort of like an acknowledgment, even though not correctly worded for California - I should have called the Title Company for clairification. Damn!

I hope this loan doesn't get shot down. The poor borrowers had already gone thru two other signing attempts. :(

Reply by Terri - CA on 5/11/05 1:40pm
Msg #37142

Re: They can be so tricky - but I caught them! or did I?

Sam

Don't be alarmed, but I bet ya a dollar that if you had called the Title Company, they wouldn't have been able to tell you which one to use.

Further, in my experience, as long as the "seal" is there, they'll accept it. It isn't a document that is going to be recorded, so you'll probably not hear anything one way or the other.

I love it when I learn something that can be used in the future! Just keep this in mind for the next time

Terri
Lancaster, CA

Reply by DellaCa on 5/11/05 1:53pm
Msg #37147

Re: They can be so tricky - but I caught them! or did I?

I remember that form and at first I was so dumb founded at which to use but it really is clear by the wording even if not correct it is an ack. so I always use a loose ack.
I do understand the concern.

Reply by SamIam_CA on 5/11/05 2:11pm
Msg #37152

Thanks everyone for your input!! n/m