Posted by BrendaTx on 10/14/06 10:01am
Msg #152495

ID Problem? Not so much. RE: Texas Jane vs. Texas Janie

Every so often I like to publish information on NotaryRotary.com to remind notaries in Texas that they are not governed by California Law, nor a huge "organization" where they may have recieved their "certification" through, or ANY handbook created or published which is not taken specifically from Texas law.

Here is a letter I wrote this morning regarding a reverse mortgage transaction. This was addressed to the loan officer and to the escrow officer at title. All names have been changed to protect the innocent. DISCLAIMER: I AM NOT A LAWYER. I DON'T GIVE LEGAL ADVICE. THIS IS MY OPINION. In respect to Harry's recent concerns about legal problems, the bully's name has been changed as well.


===========Letter to Lender and Title==============

Hi Debbie (LO) and Donna (TC):

FYI, the Janie Browning reverse mortgage signing took place without a hitch.

However, there's a note to add about Mrs. Browning and what's on her ID (Texas Driver's License).

Even though her ID said Jane and not "Janie" I went ahead and did the job because I do not find myself to be the "Mortgage Document Police." I am there to ID signers, not to tell title and mortgage lender how to do their work of giving loans.

However, if I wanted to play it "by the book" as written by the Xxxxxxx Notary Organization, like so many notaries do, I would have rejected that ID and been well within my right to do so by >>California<< rules. Her driver's license said "Jane Browning" not "Janie Browning."

Now, I am telling you this because I want you to know the mentality of many of the notaries out there you are dealing with.

The Xxxxxxx Notary Organization has flooded notaries with information against "fraud" to the point that notaries new to this business are just nutty about ID requirements. I have been in the business of mortgage, legal, and title long enough to recognize a senior borrower in a house as who mortgage and title is planning on getting the loan documents signed by.

I returned a copy of the driver's license so that this could be discovered in title and corrected if it is a problem to title.

Clearly, I had the right person in front of me, but the problem is that her driver's license said "Jane" and did not identify the person "Janie" on the documents.

As a little heads up In the future, when you see that happen on your borrower's driver's license, do not assume that the notary you get will have "a lick of common sense." I don't know how to tell you to solve the problem, but just letting you know that the problem could BE a problem in the future. Many notaries who do what I do go by the strictest letter of the ID procedure and will often say "no" and leave the signing.

In Texas, notaries are not required to go through the hoops jumped through in California as set up by the Xxxxxxx Notary Organization and are required to ID people to the notary's satisfaction - NOT in strictest compliance with the XNO's suggested method of matching ID to loan documents.

But, alas, Texas notaries unfortunately do not read their own handbook and opt to read the California books published by the XNO which is based on California notary law.

In my humble opinion, the XNO has made a multi-million dollar business by scaring new notaries into a mentality of "the sky is falling!" and they forsake their real duty to do a satisfactory ID on a signer before the notarization and opt to demand strict compliance (California's compliance) to match the name on the documents with the the identification presented. I simply noted it in my journal and told Mrs. Browning that she probably ought to make sure her DL is corrected in the near future so as to never run into the problem of "but this says Jane not Janie!"

Thanks for all the work you ladies give me.

Sincerely,
Brenda Stone

===========Notes to the Texas Notary==============

WHAT THE TEXAS NOTARY EDUCATION HANDBOOK SAYS ON IDENTIFYING A SIGNER:

--If the signer is not personally known by the Notary Public or identified by a credible witness, the Notary Public must use an identification card issued by a governmental agency or a passport issued by the United States to identify the signer.

--(5) whether the signer, grantor, or maker is personally known by the notary public, was identified by an identification card issued by a governmental agency or a passport issued by the United States, or was introduced to the notary public and, if introduced, the name and residence or alleged residence of the individual introducing the signer, grantor, or maker;





AN EXAMPLE OF A NOTARIZATION FROM SAMPLE TRANSACTION FOR AN ACKNOWLEDGEMENT
(The following information is Prepared and Distributed as a Public Service by the Texas Young Lawyers Association and the State Bar of Texas - Revised 1994 by F. Henry Garcia. Mr. Garcia is retired from serving as legal counsel to the Texas Secretary of State's office.)


An example of how an ordinary transaction takes place is as follows:

John Doe appears before a Notary Public with an unsigned instrument and in the presence of the Notary Public signs the instrument. The Notary Public must ask John Doe to acknowledge: (1) that he is the person named in the instrument; (2) that he signed the instrument voluntarily and without duress; and (3) that he signed the instrument for the purpose and consideration expressed in the instrument. (This is the job of the Notary Public and it should not be embarrassing to do the job right.) After ascertaining this information, the Notary Public certifies that the instrument was acknowledged in his presence by signing the instrument as a Notary Public, applying the seal to the instrument and writing or stamping the expiration date of the Notary’s commission on the instrument, if the official seal does not contain this information.

If John Doe does not answer ‘yes" to each of the questions stated above, the Notary should not sign the instrument. The certification is the Notary Public’s statement, in an official capacity, that the instrument was signed in the Notary’s presence, that the signature was voluntarily placed on the instrument without duress, and that the person so signing was the person he claimed to be. With regard to this last certification, when a Notary Public does not know the person whose acknowledgement is being certified, the Notary should request that some identification be shown or some introduction be made.

Reply by DellaCa on 10/14/06 11:37am
Msg #152504

I am not in Texas as you know but I would be interested to see any responce made by th LO or TC.

Reply by BrendaTx on 10/14/06 12:17pm
Msg #152512

Della - re ID in Texas

I will certainly share. However, what I expect will be the response is, "Thanks, Brenda."

It was a CA title company and a local LO.

I was not trying to slam anyone or be "cute" about this situation. My thinking is that wouldn't it be great if LOs would recognize the problem and deal with it before the notary has to.

Reply by BrendaTx on 10/14/06 12:23pm
Msg #152513

Re: Della - re ID in Texas

>>--If the signer is not personally known by the Notary Public or identified by ~~~a credible witness,~~~~ the Notary Public must use an identification card issued by a governmental agency or a passport issued by the United States to identify the signer. <<


We do not have to have TWO credible witnesses as notaries. We need ONE.

Because this post will get as long as the one before, I am going to make another one to make another point...stay tuned...

Reply by BrendaTx on 10/14/06 12:30pm
Msg #152515

Re: Della - re ID in Texas Part 2

The purpose of having a notary in Texas at a signing is NOT to assure that NAMES ARE >SPELLED< CORRECTLY.


Here is the attorney's (Henry Garcia's) example repeated. Please note that the Texas Notary is not trying to match every letter of the ID to the loan docs. **We are there to address that the the correct person is signing the documents.** Texans are expected to use their brain and apply a degree of due diligence to that end.

An example of how an ordinary transaction takes place is as follows:

John Doe appears before a Notary Public with an unsigned instrument and in the presence of the Notary Public signs the instrument. The Notary Public must ask John Doe to acknowledge: >>>>>>(1) that he is the person named in the instrument;<<<<<< (2) that he signed the instrument voluntarily and without duress; and (3) that he signed the instrument for the purpose and consideration expressed in the instrument. (This is the job of the Notary Public and it should not be embarrassing to do the job right.) After ascertaining this information, the Notary Public certifies that the instrument was acknowledged in his presence by signing the instrument as a Notary Public, applying the seal to the instrument and writing or stamping the expiration date of the Notary’s commission on the instrument, if the official seal does not contain this information.

Reply by JanetK_CA on 10/15/06 1:50am
Msg #152624

FYI, you might be interested to know that when the CA notary Handbook defines "satisfactory evidence" it only specifies *what kind* of ID is acceptable - not how to interpret it or what content is considered supporting documentation. The concept of "less not more" seems to be widely taught and is apparently considered standard practice and good notarial procedure. I certainly don't disagree with that as a rule of thumb, but just for the record, I haven't seen anything in CA notary law that would specifically prohibit accepting "Janie" for someone whose ID says only Jane. That becomes a matter of good judgment and "common?" sense. No comment about any "huge organization" that happens to reside in California and conduct numerous training sessions here and elsewhere... ;>

Reply by BrendaTx on 10/15/06 7:05am
Msg #152628

Very interesting, Janet. My global comment about the example of the XNO is an accumulation of telephone calls from notaries in Texas who are concerned about their ID dilemmas. So many do not refer to the little green pamphlet we have but have access to the phone number/ books I mention by said XNO.

I really appreciate your comments on this and hope that others give this some thought before they notarize a signature when the right person is signing but their ID just doesn't quite match. "Wrong names" on documents are another subject entirely.