Posted by g/ca on 12/9/06 5:32pm
Msg #165066

creditble witnesses

I have been reading the repsose of the SoS from Larry and Joh Cal, does anyone know what the actualy consesus is on the matter? or are we basically on our own it judging whether we can appsolutely take the word from the SoS or are we setting ourselves up for a law suit in the future??? When they say we have idenified them with satisfactory eviedence I am becoming a little confused in the matter. What is Satisfactory evedence? Satisfactory can be a very broud term. I would prefer this to be black and white no shades of gray.

Reply by Larry/Ca on 12/9/06 9:14pm
Msg #165071

Hi g/ca,

Actually satisfactory evidence is the "absense" of evidence that would lead a reasonable person to believe that the person is not who they claim to be, Section 1185 (c) California Law.

You can only use credible witnesses if the 5 conditions Section 1185 (c), (1) (A-E) California Law are met.

Obviously, there can be different understandings of conditions C and D where the word 'possess' can be taken to mean either own or control, both of which being dictionary definitions, and in the word 'difficult' which is a very ambiguous benchmark.

You can take some comfort in that the burden of proof lies with the accuser in a suit for damages based on negligence or misconduct in your failure to establish proper idenity, Section 1185 (e) California Law.

Reply by Susan Fischer on 12/9/06 9:25pm
Msg #165072

"I would prefer this to be black and white no shades of

gray"

"Reasonable person" and "Satisfactory Evidence" are terms of art, based upon the common sense of citizens in a civilized society, among many other things. Our Notary Commissions are state sanctioned licenses perform our duties and uphold the laws of the state and the nation. So, to be a trustworthy officer, it is expected that constant education be a part of the job. Taking dubious advice is no excuse for breaking the law. Researching one's craft is the key to getting you to that *bright line,* black or white, but you will be hard put to find too many of those. That's one reason we have juries.

On some issues, because nobody posting is giving legal advice, you will not find the consesus you are looking for. One notary's 'satisfactory' may not be another's 'reasonable.' But it pays to read the opinions, and come to your own consensus...all personalityies aside...and become the best notaries we can be. This forum offers vast knowledge-sharing, so keep posting, and read alot.

Cheers!
Susie

I'm not a lawyer, but I saw one played on TV.

Reply by Genene Restivo on 12/9/06 9:51pm
Msg #165073

Re: "I would prefer this to be black and white no shades of

Susie says "I'm not a lawyer, but I saw one played on TV."

LoL Susie I liked that one!!

Thanks Susie and Larry

Reply by Genene Restivo on 12/9/06 11:40pm
Msg #165089

One More Question Please

I have just one more quetion about this CW issue, If you do decline notarizing a Document do to their lack of current ID, as they say a Notary cannot dicline a notarizaton unless it appears to be unlawful. Can someone come back and say that they had 2 CWs and therefore there was no reason not to decline, that kind of puts you in a rock and a hard place. I have learned alot from this forum but I don't think that this has ever been addressed. After reading all the info on this I don't feel comfortable excepting CWs as CaliNotary makes alot of sense on this.
But as I said can someone comeback and say it was declined and that come back with some law suit of some kind??

TIA

Reply by Susan Fischer on 12/10/06 12:05am
Msg #165090

Credible Witness is another term of art...it's not just

some bloke who 'knows me' as Joe Schmo. Credible is fairly acertainable. This all goes to common sense, a 'reasonable' person's assessment of the circumstances. Just becuase a person says "I have two people who vouch for me," doesn't mean I put my job on that line. Research "credible" with respect to "witness." "I've known this guy for two years since he worked here" vs. "I've known this guy since grade school, and I know his whole family" is a big difference.

Reply by Pamela on 12/10/06 8:40am
Msg #165100

Susan,

You are absolutely correct!

At my old job (very, large company) there was this young "thirty-something" guy,
who was very nice and professional. He had been with the company for almost
two years. We all (including middle and upper management) knew him as John Doe.
He wife was an elementary school teacher and they had two young children
(including a newborn). She too was a very nice person. They attended most of
the company's functions and events. He was an extremely "hard worker".

Turns out, he was being investigated by internal affairs,
the F.B.I. and the Postal Service for major insurance scams and
Postal fraud (His "girlfriend", worked at the post office and was stealing
money orders for him. He and a few "long time" employees at work
were involved in identity theft too. They were stealing the clients
identification, to cash the stolen Postal money orders; it was in the
"thousands" of dollars).

His wife too was involved in the insurance fraud ("staged" auto accidents).
Later it was learned that the insurance investigation had been going on,
even before he started working with the company.

When he "suddenly" when "AWOL" (so to speak), rumors started.
It wasn't until we saw his "Most Wanted" poster at the Post office,
that we discovered his "true" identity (Needless to say, management
was not thrilled in the least, and that is putting it mildly.)

Several "long-time" employees involved, lost their jobs,
benefits etc. . .because of their greed and stupidity. Some
even went to jail. Others received various forms of
disciplinary actions (i.e. suspensions without pay etc. . .)

Both he and his wife were incarcerated, lost their jobs,
their home (part of a plea deal because the home was purchased
with the insurance companies settlement monies) and their children
(who now live with their maternal grandparents). Their immigration
status is also in question.

So yes, it is very important to really know who someone is, when
vouching as a Credible Witness.

And, when I complete notarizations for friends and associates,
I still obtain their identification and thumbprints.

Pam

Reply by Gary_CA on 12/10/06 12:35pm
Msg #165133

Win a free cigar...

About once a month someone come on here and posts that we must perform notarial acts for everyone who asks us to. That we cannot refuse. That even if they're not going to pay... etc. etc. etc.

Show me anywhere in the handbook where it says such a thing and win a cigar.

There are two quotes that come close, but no cigar:

1) Doing acks and jurats on request is a general duty of a notary. (GC 8205)

2) Refusing to complete an ack AFTER RECEIVING PAYMENT is a misdemeanor. (GC 6110)

That's it.

You don't have to do every notarization (or every notary) that you're asked to do. You don't have to do them in a blizzard, you don't have to do them at 2 in the morning on Monday. You don't have to do them when requested by a SS that never pays. You don't have to do them if you're nervous about the identification.

There's a saying in the tech world that applies tenfold to this business.... RTFM

Reply by Lee/AR on 12/10/06 12:50pm
Msg #165136

OK... I'll bite: what does RTFM mean?

Assuming it's printable....

Reply by Larry/Ca on 12/10/06 2:36pm
Msg #165161

Read The F***ing Manual n/m

Reply by BrendaTx on 12/10/06 2:42pm
Msg #165163

Larry, I read the f... manual, but I still don't see "RTFM"!

Is that something to do with the RTC?



Ha ha ha ha...just kidding you!

Reply by Gary_CA on 12/10/06 3:38pm
Msg #165172

or in mixed company "Read The Fine Manual" n/m

Reply by Lee/AR on 12/10/06 3:53pm
Msg #165176

Thank you both. I will add it to my vocabulary. n/m

Reply by LkArrowhd/CA on 12/10/06 10:23am
Msg #165118

Re:Susan outstanding post...... n/m

Reply by Jon on 12/10/06 10:21am
Msg #165116

If you read the manual, the bottom line is that the notary is NOT responsible for for whether or not the borrower meets the standard for credible witness'. The witness' are the ones that are required to make those determinations. If ever taken to court, I would say that it falls outside the realm of my responsibility.

Now with that said, we as notaries need to take reasonable precautions to make sure that we have the correct person in front of us. I personally decide whether or not to use of CW's on a case by case basis. In my opinion, if the person has credible witness', as defined in 1185(c)(2), we are required by law to perform the notarization unless there are other circumstances that would allow us to refuse. Of course this may easily circumvented for signings as part of the requirement that compels us to perform the notarization is that the appropriate fee is paid. At a signing, the appropriate fee is not being paid to us at the time, therefore we could legally refuse to notarize.

This, of course, is only my opinion and if you attempt to use it in court, you'll find you should have gotten a lawyer instead, your E&O should cover it.

Reply by Larry/Ca on 12/10/06 3:52pm
Msg #165175

Well, I think that the person...

making the acknowledegment is clearly the the person that needs to meet two of the standards of conditions to be met for the use of credible witnesses in California. Sections 1185(c),(1),(A,D) California Law. I do find it interesting that notaries here on this board quite frequently make the determination as to whether or not it is difficult for the signer to obtain another form of ID when it is clearly stated that the whitness is to make this determination Section 1185,(c),(1),(C).

Larry

Reply by CaliNotary on 12/10/06 5:02pm
Msg #165180

Re: Well, I think that the person...

"I do find it interesting that notaries here on this board quite frequently make the determination as to whether or not it is difficult for the signer to obtain another form of ID when it is clearly stated that the whitness is to make this determination"

Yeah, but I'd guess that in most of the situations where credible witnesses are used in this industry, the witnesses aren't there at the time it's determined that they would be needed as ID. Therefore I'd say it's perfectly reasonable for us to make the judgment call as to whether or not to bother to go out and get them.

And I'd be curious as to how often the people who do use credible witnesses as just another form of ID actually have the witness explain why they think the circumstances are that would make it very difficult for the borrower to obtain ID. Or if a middle name or initial is on the documents, make the witness give the full name with no prompting from the borrowers.

Reply by Larry/Ca on 12/10/06 5:24pm
Msg #165182

Hello Cali, I think that....

if the two conditions, first, that the signer is named in the document and second that they do not possess named identification documents is met that it is worth trying to save the signing with the use of credible witnesses. My position has always been to complete a signing if at all possible within the scope of the law. I do recognize that the word 'possess' is very troubling because of mixed understandings within the definition of that word. I think that I would differ with you in that I think that a person could own but not possess a couch. The definition of possess does include own but also includes control, which I take to be the operative notion as used in the law of conditions for the use of credible witnesses.

Always a fool, Larry

Reply by Gary_CA on 12/11/06 1:45am
Msg #165199

Not that it matters here...

but ...

"the definition of possess does include own"....

Nope.

No only can you own a couch you don't possess, you can possess a couch you don't own. In fact if you own but don't possess, somebody somewhere possesses but does not own.

I possess a home I do not own... with a contract and rights that limit the rights of the owner of the home.

As has been said a zillion times, it comes down to reasonableness.

Notary: Do you have a driver's license?

Signer: Yes, but I left it in Florida.

Notary: What do you need notarized?

Signer: A permission slip so my kid can go to soccer camp next summer.

Notary: Have your brother FedEx you the license.

vs.

Signer: An affidavit that I really do have insurance so that this hospital will remove my appendix... it really hurts.

Notary: How long have you known these two guys carrying you?


As for who makes the determination... well yes it's the wittinesses who take the oath and are ultimately responsible... but I'm the one who will have his name and number on that doc forever and I'm the only one that has the key to the case my stamp is in...

Reply by Larry/Ca on 12/11/06 2:16pm
Msg #165264

Re: Not that it matters here...

Hi Gary,

Yep, not that it really matters, however a month or so ago I did a 180 on my understanding of the use of credible witnesses and of not much consequence as I use them perhaps on 1% of my signings. At the time, it was all that mattered to me.

My recent posts on this issue and several e-mails to the SOS were only to help me make more clear the understanding others had on this issue. The pages containing Section 1185 have fallen out of my handbook from use.

To be sure , I have always been absolutely certain that the person standing in front of me was the person named on the docs but was unsure if I could notarize their signature within the scope of the law.

To my dismay, when I got back home after a credible witness signing and re-read section 1185, I was incorrect in my use of credible witnesses for the signing. I was thinking that the law said "the person does not possess any acceptible named documents". The word acceptible is not there. I used credible witnesses because the borrower had ID with her maiden name and another ID with her married name and the name on the docs contained both her maiden and married name. She did possess ID named in sections 3 & 4 of 1185 so she didn't meet one of the conditions.

My understanding now is that I would not have needed to use credible witnesses as I had reasonably identified the signer with certainty by a photo, description and birthday match, not withstanding the NNA's widely accepted procedure of using the less but not more than rule. A rule just not covered by notary law.

I continue to be interested in peoples understanding of the condition that it would be 'difficult'
to obtain concept. And I agree with you that we are responsible for these goings-on even though the determination is clearly that of the witness. I certainly would not allow a witness to make an affirmation to the truth of something that I knew was in fact untrue. Having said that, if I were the witness I could reasonably conclude that it was difficult to obtain named ID that was actually in another state because I consider that determination to be made for the matter at hand, this notarization right here, right now. I don't think that circumstances in the future, another day, another time, need to be considered in the here and now. I think that I am in the minority opinion here as many have concluded, on the board, that it is not difficult and advise the borrower to simply go apply for a new ID.

I would agree that a person could own but not posses an ID. And yes own is contained in the definition of the word possess, in my dictionary it is the first word used to define possess. I only menton it here as others have posted clearly using this understanding of the word possess. I would conclude that if a borrower had simply misplaced and could not find their ID that they did not possess such ID. As I have said I think that the concept of control, also contained in the definition is the operative word.

And yes, this issue has been way overplayed on this board but it continues to generate questions. It is critically important notary law and I think all discussions on this topic are useful. Since the SOS will not interpret this law for you nor advise you on your interpretation of it and the NNA will give you answers with certainty not covered by law this topic continues to baffle.

The snow has stopped in Lake Tahoe, Larry