Posted by MrEd_Ca on 11/15/07 12:58pm
Msg #221441

Certifying Capacity in California- --- a lender insists ----

The Notary Acknowledgement block reads: “Before me appeared John M. Smith & Jane L. Smith, Trustees of the John M. Smith & Jane L. Smith Family Trust dated Jan 1, 2001, personally known to me (or Proven….ect., ect.)”

The lender is JP Morgan Chase Bank out of Ohio. I have already told them & SS that in California a notary cannot notarize the document as long as the phrase referring to the Trustees appears that that would be certifying a capacity which a California notary cannot do. I have said I can notarize that document if the signers’ capacity is crossed out. Lender insists that that phrase be retained within the notary certificate & have already found a notary who will notarize all four of the acknowledgements with the capacity wording intact within the certificate.

My question is --- will something like this get past the county recorders office? Or does it matter? I know California law is particular on this subject, but the Lender seems to think I have my head in the sand, that this sort of thing is done all the time. (Well it is a first for me, the Lenders insistence, that is. Most just say, yes. go ahead & cross it out.) Any respectful & polite opinions or comments would be most appreciated. Thanks to all.

Reply by Sylvia_FL on 11/15/07 1:03pm
Msg #221443

I believe CA also has an acknowledgment certificate whereas there is a block on it where you can check the capacity of the signer. I would just attach the loose certificate.

Reply by janCA on 11/15/07 1:20pm
Msg #221452

Re: Certifying Capacity in California- --- a lender insists

I'm gonna guess that the clueless notary doesn't even realize that you can't notarize capacity but I would send the lender the specifics of this from the CA handbook. Do these people think we make this stuff up????

Reply by JanetK_CA on 11/15/07 8:51pm
Msg #221538

Sylvia, just FYI, there are various versions of the all-purpose acknowledgment that can be acquired, as you know, that may have an optional section for capacity, but it will not be found anywhere on anything produced by the state showing what must be included on an ack.

To MrED/CA: did this come up because you asked about it or did they contact you after the fact? Personally, I never ask. I have very often simply lined through the information that wasn't supposed to be there and added my initials. Or as others have said, just added a loose certificate. If they have a problem with that, I don't think there's much you can do beyond sending them a copy of the law (including the one about penalties for requesting an illegal notarization!)

Reply by Joan Bergstrom on 11/15/07 11:12pm
Msg #221561

Janet is correct: just line through "Trustee" initial it and complete the notarization. It's illegal in CA to have capacity in the personally appeared part of our ACK.

Reply by PAW on 11/15/07 1:27pm
Msg #221457

Re: Certifying Capacity in California- --- a lender insists

As I have been told in the past, by FL recording clerks, "We are not the notary police!" If they were, then the 50% or so of recorded documents would not have been recorded in the first place. I don't know whether or not the same holds true in CA, but I certainly can attest that in Florida, an "invalid" notarial certificate does not stop the instrument from being recorded in most cases.

Reply by Therese on 11/15/07 1:28pm
Msg #221458

You are right to say you cannot notarize capacity. However the BO can sign as IND and Trustee. In the notary block you put the IND. The county recorder here has told me if the notarial block has a capacity she would reject it. Like Jan said I would copy the handbook to help back up your case. You could put in the optional section if your certificate has one that they signed in this capacity but not in your notarial block. Good Luck

Reply by dickb/wi on 11/15/07 2:20pm
Msg #221467

when are these lenders and ss going to realize....

that the notary block is the realm of the notary and not the document maker.......in fact contrary to popular belief the notary block, while printed on the document , is not a part of the document, but a documenty unto itself......

Reply by Phillip/TX on 11/15/07 2:29pm
Msg #221471

In agreement dickb!!! n/m

Reply by Charles_Ca on 11/15/07 3:11pm
Msg #221480

Re: In agreement dickb!!! Nicely put dickb! n/m

Reply by Gerry_VT on 11/15/07 3:36pm
Msg #221484

Re: when are these lenders and ss going to realize....

Perhaps the lenders and signing services figure it out after at least one secretary of sate figures it out. Unfortunately, I can't remember which one, but I remember reading that one secretary of state ruled that only lawyers could compose acknowledgments, not notaries, because if a notary did that he would be unlawfully practicing law. I believe that SOS was wrong; the notary would not be unlawfully practicing law, he would be carrying out the duty assigned to him by the law.

Reply by Terri_CA on 11/15/07 4:05pm
Msg #221491

This is frustrating to be sure. However, the County Recorder may or may not reject it for recording. However, I would provide a copy of the relevant sections of the CA notary Handbook to your contact. Let them know that improper completion of the Notary Certificate can invalidate the notarization. Thus, their lien on the property could be in jeopardy. Further more, asking you to improperly/illegally complete the notary certificate is a Misdemeanor according to Government Code Section 8225.

Refer them to Civil Code Sections 1189 & 1190 on Page 38 & 39 of the 2007 CA notary Handbook.

Terri
Lancaster, CA

Reply by christiSocal on 11/15/07 4:53pm
Msg #221501

I had a similar situation today

The borrower keeps all her property in her LLC. One of the docs was written up using her business name, no proper name at all! I just attached a loose ack...

Reply by BarbaraL_CA on 11/15/07 5:04pm
Msg #221502

Show the lender what is printed in the CA Handbook!!!
I had a stamp made that says "See attached CA All Purpose Acknowledgement" (I got tired of writing it all the time). I cross out the notary wording written, stamp and initial with the stamp I had made, attach an All-Purpose Acknowledgement using the names I ID'd them with, and on the bottom of the All-Purpose (I use NotRot's) I list the document type, number of pages, date of document, and check the capacity as Trustees.

Never had a problem.

Reply by MikeC/NY on 11/15/07 6:51pm
Msg #221516

Just curious

Does anyone know why CA has an issue with certifying capacity, or is it just one of those quirks of state law? NY allows for it in the acknowledgment - do any other states prohibit this? Same question about the new CA law eliminating the "personally known" option - is there some reasoning behind that?

I realize this doesn't add anything to the discussion, but inquiring minds would like to know...

Reply by BarbaraL_CA on 11/15/07 7:44pm
Msg #221529

Re: Just curious

I would think it is a matter of PROVEN identity as far as the capacity issue goes. Can the signer present you with a permissable ID that shows his/her capacity?

As for the personally known issue - I would believe it is a stricter control on identity.

These are just my opionions.

Reply by CaliNotary on 11/15/07 10:01pm
Msg #221547

Re: Just curious

"As for the personally known issue - I would believe it is a stricter control on identity."

If that were the case they would have gotten rid of credible witnesses too. Knowing somebody personally is a heck of a lot more reliable than relying on 2 strangers to identify someone.

Reply by MikeC/NY on 11/16/07 5:19pm
Msg #221720

Re: Just curious

<< Can the signer present you with a permissable ID that shows his/her capacity?>>

That's an interesting question, because in NY we don't currently have the concept of "a permissable ID" - we are simply to rely on "satisfactory evidence" that the person appearing before us is who he or she claims to be, which leaves it up to the notary to determine. I would be more comfortable with a list of what I can and cannot accept, but NY tends to be stuck in the 19th century on some issues... I have my own personal list of what's acceptable to me, which I use unless I'm overridden by lender requirements.

As to capacity, here's what the NY acknowledgment says:

".. and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument."

Personally, I like CA's approach better...

Reply by WDMD on 11/17/07 5:32am
Msg #221785

Re: Just curious

"Personally, I like CA's approach better..."

Not me. Maryland has the same rule as NY as far as IDing someone. From what I read on here CA seems to have pretty strict ID rules. If I went by their rules half my signings would not get done. For some reason women, no offense, seem to have a problem getting ID's in their ever changing names. At least not being tied to having an ID exactly match the name on the doc's leaves room for the notary to make common sense judgments based on "satisfactory evidence" which could be really anything to convince you that the person in front of you is who they say they are.

At least Maryalnd does not use credible witnesses. I'd be much more unsure of those then what I stated before. If you wish your state was more like CA as far as IDing someone goes you can always just use their rules and state that is the only way you would be satisfied as to identity. JMO

Reply by MikeC/NY on 11/17/07 1:56pm
Msg #221821

I was referring to capacity, not ID

CA's approach towards that makes more sense.

On the ID issue, it would be nice to have a guideline, but common sense works too. For instance, if handed a recently expired driver's license where the photo and signature match the person in front of you, do you still have "satisfactory evidence" of their identity?

NY does not allow for credible witnesses either, but perhaps that falls into the black hole of "satisfactory evidence", since it's up to the notary to determine the ID. We do allow for subscribing witnesses, but the acknowledgment form is different.

Reply by GWest on 11/15/07 8:06pm
Msg #221532

Re: Just curious

As to the proven identity, I understand the reasoning behind this was that the notary may personally know the person, but should the notary die or revoke their commission and not be locateable, the journal would not have any record of the person identity, making it difficult to investigate should their be a problem.

As to capacity, I'm not sure, but my feeling is that we can prove their identity, but can we prove they are in fact the Trustee, or President, etc, without having further documentation proving that, like a copy of the trust, corporate papers. Then, even having these papers, would we practicing law to interpret the papers, to in fact state they the person is still indeed the trustee, President or whatever. I would not want to have to read the full trust or whatever and determine a persons capacity.

Reply by PAW on 11/16/07 5:04am
Msg #221578

Re: Just curious

Florida does allow the use of representative capacity in acknowledgments and jurats. The reason is in the specific wording that is often used here: "Jane Doe who represented to me that she was formerly known as Jane Smith". Even though the short forms of our certificates do not include the words "represented to me", it has been held by the FL Supreme Court that a notary certificate that shows a capacity is not a certification by the notary of that capacity, but an indication by the signer who is properly identified, that they have the capacity. Florida statutes do not require the notary to validate the capacity, but accept the signer's word for it.

The underlying reasoning, from what I can gather, is because a notarized signature does not change the legality (or lack of it) of the document. Therefore, the notary is only responsible for identifying the person not the position and whether or not the person had the authority to represent the position is up to the courts to determine if necessary.