Posted by Harry [NR] on 10/20/05 1:18am
Msg #71348

2006 California Acknowledgment Certificate Update

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Acknowledgment Certificate Background
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As many of you know, Assembly Bill 361 was recently signed. Among other things, it removes the word "substantially" from Section 1189(a) of the California Civil Code: "Any certificate of acknowledgment taken within this state shall be in -[substantially] the following form:" That section of Code goes on to prescribe the format of the California acknowledgment.

The California All-Purpose Certificate of Acknowledgment that we currently sell in The Notary Shop contains all of the wording from Civil Code Section 1189. HOWEVER, our current certificate ALSO contains an additional security feature: checkboxes allowing the notary to designate on the certificate the method of identity verification used (personally known, satisfactory evidence/identification, satisfactory evidence/credible witnesses).

Assembly Bill 361, which was supported by the National Notary Association (NNA), did not originally include the amendment to strike "substantially" from Section 1189 of the Civil Code. Rather, as the Bill made its way through the Assembly and designated Committee, the amendment to Section 1189, was added as, itself, an amendment to the Bill.

Removing the word "substantially" from Section 1189 of the California Civil Code has called into question the usefulness (beginning on 1/1/2006) of over 1,000,000 California All-Purpose Certificates of Acknowledgment that we have sold. Before deciding what we were going to do about it, we sought clarification from the California Secretary of State on a number of issues. We were unable to respond until now due to their response time. Here are some of the issues we raised:

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Issues for the California Secretary of State to Address
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1) Interestingly, while the Bill changes Section 1189, it does not affect Section 1188, which clearly states: "An officer taking the acknowledgment of an instrument shall endorse thereon or attach thereto a certificate substantially in the form prescribed in Section 1189." In other words, unless I am missing something, Section 1188 specifically allows for the use of an acknowledgment certificate "substantially" the same as what is prescribed in 1189.

2) Generally, where record-keeping and notary affairs are concerned, more information is better. Our acknowledgment form, in addition to containing all of the wording set forth in 1189, contains a bit more. In particular, with very little effort (a swipe of the pen), the notary is able to describe the method used to confirm identity ON the certificate. Not only could that information be valuable to recorders or other parties in certain circumstances, but it could also help in the identification of fraud since the identification information on the certificate and connected journal entry should be consistent. In addition, checking the boxes on our acknowledgment requires conscious thought, making it LESS LIKELY the notary is taking the acknowledgment through a third-party. (Which is one of the concerns in the Bill's Analyses.)

3) The amended 1189 could be interpreted as having an implied "substantially" for two reasons: a) The omission of the word "exactly" or "identical" (the latter of which was referenced in the April 25/26, 2005 Assembly Committee analysis, but not in the amended Code) and b) The somewhat nebulous or semantically-challenged word "form," which, itself, can be defined as "the essence of something," which has a having-all-critical-elements ring to it.

4) In my personal opinion, if the goal was, in fact, to further combat identity theft by giving existing laws more "teeth," then the striking of the word "substantially" in Section 1189 of the California Civil Code was not, itself, substantial and, it seems, a relatively weak means to an end. The fact that Section 1188 was not amended and that the striking of "substantially" in 1189 was, itself, an amendment to the original Bill, is supportive of the notion that THIS change was an after-thought and not necessarily a genuine effort to strengthen the essence of the Bill.
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Our bottom line question to them was whether our current certificates could be used beginning 1/1/2006. The bottom line answer was for us to read the Bill and interpret it on our own. (In our experience, the office of the California Secretary of State will seldom - almost never - issue an opinion that could be construed as the interpretation of notary law or advice, for obvious and not-so-obvious reasons, I think.)


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Here's What We're Going to Do
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1) Revise our California All-Purpose Certificate of Acknowledgment to exactly match what is detailed in Section 1189, and
2) For the immediate future, subject to availability, sell BOTH versions for $2 (Premier pricing) and $3 (normal pricing)!


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That's right. 100 two-color Certificates in two 50-sheet pads for $3.00! If you can use $3-worth of the "2005" version by 12/31/2005, you might want to visit our store. Once the new version is available, it will ALSO be $3.00! As usual, Priority shipping is a flat $3.85, meaning you can pick up a slew of certificates with a journal order for a few extra bucks.

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Finally, beginning on 1/1/2006, we recommend that you NOT use the "2005" version.

Best,
Harry
Notary Rotary, Inc.