Posted by John_NorCal on 7/27/06 1:14pm
Msg #135555

Credible witness answer from CA Sec of State office

Here is the text of an email that I sent to the Secretary of State's office this morning regarding the use of a credible witness for a married woman who has not changed her name yet. I know CaliNotary will not agree with the answer, but that is how the state views this. I hope we can put this to rest once and for all.

-----Original Message-----
From: John Gonzalez [mailto: [e-mail address]]
Sent: Thursday, July 27, 2006 5:34 AM
To: [e-mail address]
Subject: Use of Credible Witness


Hello,

Questions have been raised regarding the use of credible witnesses to establish identification. Please respond to the following scenario:



Suzy Smith marries and takes the name of Suzy Jones. She presents current identification showing her name as Smith. Can credible witnesses be used to establish her identity as Suzy Jones?


Dear Mr. Gonzalez,

Yes, as long as all of the requirements of Civil Code section 1185 are met. I have included a portion of the text below:

(1) The oath or affirmation of a credible witness personally known to the officer that the

person making the acknowledgment is personally known to the witness and that each of the

following are true:

(A) The person making the acknowledgment is the person named in the document.

(B) The person making the acknowledgment is personally known to the witness.

(C) That it is the reasonable belief of the witness that the circumstances of the person making

the acknowledgment are such that it would be very difficult or impossible for that person to

obtain another form of identification.

(D) The person making the acknowledgment does not possess any of the identification

documents named in paragraphs (3) and (4).

(E) The witness does not have a financial interest in the document being acknowledged and

is not named in the document.

(2) The oath or affirmation under penalty of perjury of two credible witnesses, whose identities

are proven to the officer upon the presentation of satisfactory evidence, that each statement in

paragraph (1) of this subdivision is true.


Mary Ingham
Notary Public Section

Reply by Joe Ewing on 7/27/06 1:46pm
Msg #135568

A credible witness can be use to establish the married name of a signer. That's not news. Also what is not news is that the Lender probably wouldn't approve so you don't tell them.

(Practical Application) So you look at the ID that says Mary Smith and you certify on the acknowledgement that Mary Jones personally appeared. Wow! You had better have credible witness ID's in your Journal.

John, calinotary will just ask his mother. If she says it's ok he will go along with it.

Reply by John_NorCal on 7/27/06 2:01pm
Msg #135572

**John, calinotary will just ask his mother. If she says it's ok he will go along with it. **

Joe, somehow I think that Cali does more than what you say he does. This post is intended because there has always been conjecture about the use of a credible witness. Recent posts have brought up this same scenario. I don't have a problem with using cw's but I thought I would pose the question to the state so we can put this to bed once and for all. But thanks for your insightful input.

Reply by ewing2surf on 7/27/06 2:07pm
Msg #135573

John his Mother is an associate of mine. She is the most knowledgable notary I have ever met.

Reply by CaliNotary on 7/27/06 6:00pm
Msg #135634

"I don't have a problem with using cw's but I thought I would pose the question to the state so we can put this to bed once and for all"

Then let's put it to bed. Per the response you got, if she has a current ID, therefore you can't use credible witnesses in this situation. And they lived happily ever after. Goodnight.

Reply by Dave_CA on 7/27/06 2:33pm
Msg #135579

No answer at all or...

Typical SOS answer.
She stated "Yes, as long as all of the requirements of Civil Code section 1185 are met."

In your scenario condition D is certainly not met as you stated that she had current ID so we don't need to debate the definition of "very difficult or impossible to obtain another form of identification."

I agree with Cali that going to the DMV to get a new DL with her legal name does not qualify but the SOS interprets it much more leniently. But how do you rationalize D?
Probably just pouring gasoline on the fire but the statute is reasonably clear.

Reply by Sylvia_FL on 7/27/06 2:36pm
Msg #135581

Re: No answer at all or... - My thoughts exactly! n/m

Reply by John_NorCal on 7/27/06 3:20pm
Msg #135593

Re: No answer at all or...

Perhaps the fact that she does not have ID in her new married name qualifies as "very difficult or impossible to obtain another form of identification." After all, it would be very difficult or impossible to obtain the identification when you are standing there in front of her at 8:00 p.m. on a week end night.

Reply by CaliNotary on 7/27/06 5:57pm
Msg #135632

Re: No answer at all or...

So you still haven't explained this:

(D) The person making the acknowledgment does not possess any of the identification documents named in paragraphs (3) and (4).

You said yourself that she has a driver's license with her old last name. Therefore, she DOES possess one of the identification documents named in paragraphs 3 and 4, which means she doesn't meet all the criteria for the use of credible witnesses. Which means one couldn't be used in this situation.

Which also means the answer you received from the SOS confirms what I've been saying all along. I really have no idea how on earth you interpreted this response to mean anything different, isn't it crystal clear?

Reply by Lee/AR on 7/27/06 3:13pm
Msg #135592

Not Cali, but of same opinion.... how do you justify this?

First: "Yes, as long as ALL of the requirements of Civil Code section 1185 are met."
(Emphasis mine).

Second: "(C) That it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification."

She can't go to the DVM???

Reply by John_NorCal on 7/27/06 3:22pm
Msg #135595

Re: Not Cali, but of same opinion.... how do you justify this?

**She can't go to the DVM???**
Not at night or on the week end.

Reply by MichiganAl on 7/27/06 4:31pm
Msg #135619

I don't pretend to know the mess that is Calif. notary laws

But I highly doubt that "very difficult or impossible for that person to
obtain another form of identification" means impossible at that exact moment. Do you really think that is the intent? I.D requirements are waived because it's after hours? "The DMV is closed" is not a legitimate impairment.

I don't remember all of the original discussion, so I'm not exactly directing this at you, but it sure seems to me that some people are really going overboard with credible witness as a way to get around identifying someone correctly. Let's not forget that the first criteria is "credible witness personally known to the officer." That's not a neighbor that says, "oh, I know this person." It's someone that "you" personally know who also knows the person making the acknowledgement.

Reply by BarbaraL_CA on 7/27/06 5:03pm
Msg #135623

Re:Al, you are right, but...

that's only for ONE credible witness. In CA you can have TWO credible witnesses of which neither one personally knows the notary, but both know the signer. That's why Joe said he hoped that the CW's ID's were noted in the journal. Personally, I required CW's ID and signatures both in my journal.

Reply by Joan Bergstrom on 7/28/06 12:06am
Msg #135696

What is meant here is at this moment she could not get

a driver's license. If she went to the DMV they would only give her the yellow temporary which states on it that it cannot be used for identification purposes.

She absolutely passes the criteria for using 2 credible witnesses. A drivers license/10 yr I.D. card take about 10 day to arrive in the mail. A passport takes aboute 3-4 weeks.

She cannot get an I.D. at this moment in time the notarization is taking place.

Sure she should have taken care of this problem before the notary arrived at her doorstep; but she didn't and that is why we can use 2 credible witnessess in Calif; I believe Florida and Calif are the only 2 states that allow 2 credible witnesses to be used and all the other states allow 1 credible witness.

This might have changed in other states in the last yr or so.

Reply by AngelinaAZ on 7/28/06 12:13am
Msg #135697

Joan... here is what I don't understand...

This would fly in my book if she provided no ID. Keep it in the purse and provide the witnesses. Once the valid-unexpired ID comes out saying that she is Jane Smith... your opportunity of CW identifying her as Jane Johnson is over.

The two means of identification is what causes the problem....

Reply by CaliNotary on 7/27/06 6:17pm
Msg #135639

I sent a follow up email

I'll post the response if I get one:

The below email was sent to an assoicate of mine to clarify the use of credible witnesses in notarizations. This answer doesn't make sense to me logically, can you please tell me how you answered yes to this situation when it seems to clearly be a NO answer to me?

The original question states that current ID was presented which showed her maiden name. Section D below states that the person making the acknowledgement does not possess any allowable ID. Since she clearly DOES have ID, shouldn't the answer be no in this situation, that credible witnesses cannot be used since she doesn't meet all of the criteria for use?

Thanks,
Brian Lynch

-----Original Message-----
From: John Gonzalez [mailto: [e-mail address]]
Sent: Thursday, July 27, 2006 5:34 AM
To: [e-mail address]
Subject: Use of Credible Witness


Hello,

Questions have been raised regarding the use of credible witnesses to establish identification. Please respond to the following scenario:



Suzy Smith marries and takes the name of Suzy Jones. She presents current identification showing her name as Smith. Can credible witnesses be used to establish her identity as Suzy Jones?


Dear Mr. Gonzalez,

Yes, as long as all of the requirements of Civil Code section 1185 are met. I have included a portion of the text below:

(1) The oath or affirmation of a credible witness personally known to the officer that the

person making the acknowledgment is personally known to the witness and that each of the

following are true:

(A) The person making the acknowledgment is the person named in the document.

(B) The person making the acknowledgment is personally known to the witness.

(C) That it is the reasonable belief of the witness that the circumstances of the person making

the acknowledgment are such that it would be very difficult or impossible for that person to

obtain another form of identification.

(D) The person making the acknowledgment does not possess any of the identification

documents named in paragraphs (3) and (4).

(E) The witness does not have a financial interest in the document being acknowledged and

is not named in the document.

(2) The oath or affirmation under penalty of perjury of two credible witnesses, whose identities

are proven to the officer upon the presentation of satisfactory evidence, that each statement in

paragraph (1) of this subdivision is true.


Mary Ingham
Notary Public Section

Reply by Joe Ewing on 7/27/06 7:28pm
Msg #135645

Is it a proper request?

It is the Notarys duty to use all means legally available to facilitate the notarial act.

My opinion is that Suzy does not have proper ID because her legal name is now her married name. It would be difficult or impossible for her to obtain another form of ID that is acceptable to the notatry at the time the signer is personally appeared before the notary. The fact that she eventually could obtain the ID from the DMV does not apply.

Reply by AngelinaAZ on 7/27/06 10:31pm
Msg #135657

Interesting point of view Joe!

I find this subject interesting because we have the same law in AZ regarding this. It is my understanding that if someone produces an ID, credible witnesses cannot be used.

If the signer produces VALID, UNEXPIRED identification that matches the picture, physical description, signature etc... who are we as notaries to say that she is not that person? She IS that person... you cannot simply TAKE THEIR WORD that they are someone else. If this was the case then I could just produce my ID and say... "Well, that's really not my name anymore... I am really Angelina Jolie... can I pull some equity out of one of her houses please?". The point of valid ID is that it IS valid ID. If you decide it isn't her name anymore, it seems like this would be borderline UPL.

Marraige certs are not for us to use to determine ID so it is as if they do not exist for these purposes. As a woman who is married... when you get married you have to bring your marriage cert down the DMV and they will issue you a new license... then you take that to the Social Security Administration and they issue a new card. If she didn't do that, then she didn't change her name, and if she didn't change her name... then she is still who she used to be and the docs are wrong. It doesn't happen automatically when you get married, you have to do it and it is a process.

Reply by TitleGalCA on 7/28/06 12:57am
Msg #135704

Re: Is it a proper request? The nature of using CW

***It would be difficult or impossible for her to obtain another form of ID that is acceptable to the notatry***

You forgot to add..."at the time of the signing".

To go back and work through obtaining an acceptable ID would cause the buyer to exceed the 30-60-90 day escrow period or (the borrower) the lock on their loan.

It would make it "inconvenient" but not "impossible". There is a HUGE difference, and that difference is what makes the SOS language (in the code) impossible to use CW's.

The language of the State makes this whole thing ambiguous - and to those who are sticking by the letter of the language - CW is simply not an acceptable way of identifying someone.

I'm very interested in what response Cali's letter to the SOS gets...but I can guess that it won't be conclusive. Such is the nature of the Ca SOS.

Reply by CaliNotary on 7/28/06 1:38am
Msg #135711

The responses (grumble grumble)

Basically, she said exactly the same thing as Joe. I still don't buy it though, and I'm still going to maintain the same standards that I always have regarding credible witnesses. I'm with Angelina on this one. Just because a person says "oh, that's not my name anymore" we're just automatically supposed to believe them? How much easier can we make it to commit fraud? So here's the response:


According to the scenario, the signer does not possess any identification under her current name, therefore, would need to use a credible witness to identify the signer under the "new" name. Just because the signer has identification, if it's not the proper identification for the current legal name signed, it cannot be used. She would not even need to present the identification under the "old" name as that is no longer valid for notarization purposes. Hope this helps.

*****************

I then followed up with this question. I also think her answer is wrong. Not to mention a HUGE copout:


Wow, thank you so much for your quick response. Now if I may follow up with another question based on your answer, section C states: "That it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification."

Does this situation qualify as very difficult or impossible to obtain another form of ID? While going to the DMV to get a new license can certainly be an unpleasant and time consuming experience at times, it's still a relatively easy thing to do for most people. I guess I just need to know whether section C means very difficult or impossible *at the moment of notarization* (which to me means that it can basically be used anytime somebody doesn't have their ID on them) or whether it's to be interepreted in a more general manner, meaning that the circumstances of somebody's life would make it very difficult or impossible to obtain the ID (such as a person confined to a bed in a nursing home or a non-US citizen).

Thanks again for your assistance.


And the response:

All of the requirements pertain to the time of notarization. If there is a specific situation that is being questioned, you or the signer may want to seek private legal counsel for assistance.

************

So the SOS office, which handles all things notary related in California, is telling us that we should contact (and pay for) a LAWYER instead of them if we have a specific situation that's being questioned? I just don't see how I can take her answers as the final word on the issue when this is the type of advice she's giving out.

Reply by Dave_CA on 7/28/06 9:10am
Msg #135738

Thanks Cali

I still think the section is very poorly written and makes it entirely too easy to commit fraud but now that you have obtained a written answer from the SOS, which I've printed and filed, I'll use their interpretation.

Reply by Joan Bergstrom on 9/6/06 2:01am
Msg #143789

Re: Is it a proper request?

Absolutey correct

Reply by TitleGalCA on 7/28/06 12:46am
Msg #135702

***Sure she should have taken care of this problem before the notary arrived at her doorstep; but she didn't and that is why we can use 2 credible witnessess in Calif***

IMO this is the very reason why CW are an "issue" for California notaries....this very sentence:

"That it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification."

Is it inconvenient...(as in the lender want to fund...NOW) and the DL is expired or in a maiden name.... or it is impossible...the person is an illegal alien.

There is the rub. I agree with Cali that in the strictest sense of the language of the SOS that a Credible Witness is only appropriate in a VERY EXTREME situation.

It took me a while to come to that conclusion and NO THANKS to the California SOS. It was my own logic that led me to that conclusion..... I'm not an attorney, but ya know what? My logic is just as good, thank-you-very-much.

Reply by celeste/ca on 7/28/06 12:00pm
Msg #135777

I agree with Cali and Titlegal on this subject. I would like to ask them in what type of situation would you actually use CW? Can you give an example please?