Posted by John_NorCal on 5/26/06 4:16pm
Msg #122548

CA Credible witness use - revisited

Just thought I would liven up the debate about the use of credible witness. The SOS handbook outlines the use of credible witness as we have come to know it. Looking at the handbook there is reference to the Civil Code section 1185. I believe what everyone is forgetting is that laws governing notary procedure are grounded in the Government Code, Civil Code as well as international treaties such as in the Hague Convention. Following is a portion of Calif Civil Code Sec 1185:

1185. (a) The acknowledgment of an instrument shall not be taken
unless the officer taking it personally knows, or has satisfactory
evidence that the person making the acknowledgment is, the individual
who is described in and who executed the instrument.
(b) For purposes of this article, "personally knows" means having
an acquaintance, derived from association with the individual in
relation to other people and based upon a chain of circumstances
surrounding the individual, which establishes the individual's
identity with at least reasonable certainty.
(c) For the purposes of this section "satisfactory evidence"
means the absence of any information, evidence, or other
circumstances which would lead a reasonable person to believe that
the person making the acknowledgment is not the individual he or she
claims to be and any one of the following:
(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.


My personal opinion, for what it's worth, is that there are no compelling reasons not to use credible witnesses when identification can not be presented by the document acknowledger. The civil code does not differentiate between proper identification being impossible to obtain or just not available. That's just my opinion and not legal advice in anyway shape or form. Next will be psychiatric advice - 5 cents please.

Reply by Mung/CA on 5/26/06 5:16pm
Msg #122558

I agree w/u 100% John. See msg #107225. Straight from

the SOS. I printed this out for my records (CYA).

Reply by Merry_CA on 5/26/06 5:27pm
Msg #122561

I totally agree... and as a matter of fact I went back to the CA notary handbook just today and read that portion of the CA civil code. I remember that in my notary class many students could not grasp to concept of what a credible winess is or how to properly use one or when two are necessary. Credible witness is a proper and probably underused form of IDing a CA signature.

Reply by Lee/AR on 5/26/06 5:34pm
Msg #122562

Hmmm.... I'm in AR...what do I know? Except...

For the sake of a lively debate only. Admittedly, I am not in CA.

(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:

Seems to me that means that the Notary must know the witness.

And... >are such that it would be very difficult or impossible for that person to obtain
another form of identification.<
Assuming they are not bedridden---what's the problem with 'obtaining proper identification'?

Reply by Joan Bergstrom on 5/26/06 5:41pm
Msg #122563

Re: Hmmm.... I'm in AR...what do I know? Except...

In Calif the notary in all probability will not know the 2 credible witnesses and therefore must get their I.D.

What the term means that it would very difficult or impossible for that person to obtain another form of identification?
If the person went to the DMV and applied for a drivers license, it would be at least 10 days for a drivers license to arrive by mail. We are not allowed to use the temporary license.

Reply by TitleGalCA on 5/26/06 6:28pm
Msg #122567

Here's the stickler in the use of credible witness' and the very thing that has pretty much prevented me from using them:

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:

...................(skipping right on down to no. (C)).................................

(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.

"difficult or impossible". Any time I have been tempted to use CW, it is simply for the convenience of a borrower, NOT because it was *difficult or impossible*

Since the SOS say ALL of the above must be true, I can't use CW in most all situations.

Reply by John_NorCal on 5/26/06 6:59pm
Msg #122576

>>very difficult or impossible for that person to obtain
another form of identification.<<

The difficulty in obtaining another drivers license for instance, that is close to a 3 week wait. In real estate matters "time is of the essence" whether it's a sale or a refinance. Since a lot of people don't have 2 forms of government issued ID, I think this is a viable and legal tool. As I stated, the SOS regulations in the hand book have their roots in the Civil Code, they are not necessarily independent of the Civil Code, Government Code or any other California code.

Reply by Mung/CA on 5/27/06 1:28am
Msg #122652

Correction! See msg #109440 & it will show u the light. n/m

Reply by christiSocal on 5/27/06 2:02am
Msg #122653

I did one of these today (my first!)

borrowers just got married, 2 mos ago. she hadn't recieved her new DL yet. So I did go ahead and use 2 credible witness's. BTW she wasn't on loan (just being put on deed) LO didn't tell them she needed to sign anything, they thought just mr. was needed... typical