Posted by debbie_CA on 12/29/08 2:18pm
Msg #273024

Acknowledgment - Out of State

LSI is pressuring me to re-do a notary acknowledgment for a deed to include that the signers signed as trustees and to include the trust name. The original acknowledgment didn't have the trustee info, the property is in Idaho and I'm in Calif. I said I can't as it is representing capacity. What do you think?

Reply by Linda_H/FL on 12/29/08 2:28pm
Msg #273025

Page 13 of your handbook

"A notary public may complete a certificate of acknowledgment required in another state or
jurisdiction of the United States on documents to be filed in that other state or jurisdiction,
provided the form does not require the notary public to determine or certify that the signer
holds a particular representative capacity or to make other determinations and certifications
not allowed by California law"

Reply by Linda_H/FL on 12/29/08 2:30pm
Msg #273026

Oops..didn't finish

There's nothing to think about - your SOS is very explicit about your including capacity in your certificates - show LSI that paragraph...

Good Luck!!

Reply by debbie_CA on 12/29/08 3:14pm
Msg #273034

Re: Oops..didn't finish

Yes, I sent an e-mail with that paragraph. I don't think they will pay me though unless I comply. Oh well. I prefer keeping my integrity. Thanks.

Reply by CopperheadVA on 12/29/08 3:16pm
Msg #273035

Re: Oops..didn't finish

<< I don't think they will pay me though unless I comply. >>

Don't let them get away with that!

Reply by MW/VA on 12/29/08 4:42pm
Msg #273044

Re: Oops..didn't finish

I agree with that. You are due to be paid for your services. They can't withhold payment just because you won't do something illegal.

Reply by Marian_in_CA on 12/29/08 4:28pm
Msg #273043

Your integrity?

Your integrity alone isn't all that's at stake if you do that, though it is probably most important. It's also your commission and possible civil (possibly criminal) penalties if you break CA notary law.

It is also against the law for THEM to ask you to do something illegal. They need to know that. (see the bottom of page 37 of the handbook).

If it were me, I would remind them of that paragraph about capacity, and also remind them that it is illegal to even ask you to do it. If they insist or ask you again... get on the phone to the SOS and report them.

If they don't pay you, then all you need to do is remind them that what they are asking you do do is illegal and you'd be happy to discuss it in front of a judge if they desire.

Reply by Marian_in_CA on 12/29/08 4:46pm
Msg #273046

Re: Your integrity?

To add to that...

If you use a separate ACK form, you can indicate in the OPTIONAL information that the signer is claiming a certain capacity, but that capacity is not part of the actual notarization. I've seen that plenty of times.

I've also seen affidavits that are notarized where the the affiant states that certain signatures on specific documents are done as a trustee, but it is signed only as themselves. That would also get around certifying capacity I guess. After all, they are attesting to their capacity... not you. You're just certifying their signature. I've never followed up to be sure, but I have seen it done twice. HOWEVER... it isn't your job to tell LSI, or anyone else that. They would need to come up with that on their own of course.

Reply by JanetK_CA on 12/29/08 4:16pm
Msg #273040

You followed proper procedure. Since what they are asking is for you to do something prohibited by CA law, I agree that you should do whatever possible to prevent them from using that as an excuse to not pay you. Good luck!

Reply by CF on 12/29/08 5:47pm
Msg #273055

Sounds like it is best to leave it alone; have another notary do the "fixing". I would rather risk not getting paid for 1 order- then have my comission revoked and not have an opportunity to make a living at all. JMO

Reply by JanetK_CA on 12/29/08 10:04pm
Msg #273069

Glad you posted, 'cause I don't want to leave the wrong impression. What I meant was that she should do whatever possible to collect her fee, that she shouldn't have to choose between doing something illegal and getting paid for work properly done...

Reply by JanetK_CA on 12/29/08 10:05pm
Msg #273070

Ooops....

That should say: choose between doing something illegal or NOT getting paid...

Reply by John_NorCal on 12/30/08 9:57am
Msg #273081

Re: Acknowledgment - Out of State ---- No way would...

I leave it alone and let them find another notary to "fix" it for them. They are asking for an illegal procedure to be done and having them get another notary to "fix" it for them just serves to denigrate notary law, notaries public and signing agents. They should be made to understand it is illegal and that they are to pay for services that were performed. Period. For what it's worth I would report them in writing to the secretary of states office citing chapter verse in verse.

Reply by Marian_in_CA on 12/30/08 11:58am
Msg #273096

Re: Acknowledgment - Out of State ---- No way would...

I'm with John on this one -- they need to know that what they are asking is not only illegal, but it is illegal for them to even ask, so if they try to find somebody to "fix" it for them, they're breaking the law themselves.

Plus, if after you have informed them it was illegal you can later go back to the country clerk where this is filed and pull the deed...you can record the notary who *did* do it illegally and then report them both. I know I would. Not that I *want* to report a fellow notary, but I will not hesitate to report the ones who break the law. They have no excuse and I have no sympathy.

There are ways around the illegal act, as I mentioned previously. But if they're insisting that the capacity be included in the notarial wording itself -- nope, no way. It's not worth losing a commission or having charges filed.

Reply by debbie_CA on 12/30/08 6:01pm
Msg #273139

I sent the paragraph from the Notary Handbook and that cleared it up for them. The Escrow Officer was just certain I had it backwards but she realized her mistake. So all is good. Thanks for all your input.