Posted by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/18/08 9:59pm
Msg #235926

Unique Signing situation - your opinion please....

On 12/24/07, I was called to notarize two documents being signed by 4 individuals. I am in CA, and the documents did not already include any notary wording. I asked them if they wanted an Ack or Jurat, explained each, and they chose a Jurat, and the signing went as usual. Later, when one of the parties took the document to the County Recorder, they said it had to be an ACK because 'that's what we've always done'. They told the person to have me REMOVE the original Jurat which was STAPLED to the document and replace it with an ACK. At the signing, all the signers signed the Jurat. Now, one of those parties is no longer available to perform a new signing. The ACK does not require them to sign it, I know.

My journal specifically lists each document and signer as Jurats.
I also remember clearly that the Notary is NOT to advise the signers on which to use - ACK or Jurat. NNA legal hotline also said NOT to remove original Jurat even though County Recorder clerk said to do so. The County Recorder said I should have known to use an ACK. I have found 5 references in various books and my study manual that specifically state the Notary is NOT to advise which form to use - it is the choice of the signer.

What is the proper way to handle this? Your comments are very welcome. Thank you!

Reply by CaliNotary on 2/18/08 10:22pm
Msg #235929

What was the document? Was it something that you knew required an Ack or did you truly have no idea?

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/18/08 11:16pm
Msg #235940

One doc was a pasture leasee option agreement, and the other

was a modification of covenents, Conditions and Restrictions. Neither had any notorial wording included. They were simply the agreements and a place for them all to sign and date.
I have a number of references before me that specifically state that the notary can NOT determine what type of notarization is needed or required. Here is just one of 5 references that all state basically the same thing:

from my traing class manual: "I caution you NOT TO DECIDE (for the principal) to place or affix either a jurat or acknowledgment loose leafe certificate upon the document void of notarial instructions or to decide which service is more suitable for the document being notarized. Such involvement may show tha the Notary helped prepare the document or is practicing law. The principal will always make the final decision as to which service is required. You may explain to the principal if he/she wishes an acknowledgment service, the Notary will check their I.D. If the principal wishes a jurat service, the Notary will place him/her under oath and the principal will need to sign or resign the document before the Notary."

Other resources that state the same are the National Notary magazine Jan 04 "Don't Choose Certificate" page 39, California notary Law Primer page 16 item 10, NNA's 101 Useful Notary Tips #18 page 10, and also in another class instruction manual from another notary school.

So, without ANY notary wording in any part of the document, how am I to know??? I've been trained to always give this choice to the principal when a notary certificate is not already included.

Reply by NCLisa on 2/18/08 11:20pm
Msg #235942

Re: One doc was a pasture leasee option agreement, and the other

Both of those documents required Acks. You may not decide what is needed, but you can say that most recordable documents require acks, while affidavits usually require jurats, etc.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/18/08 11:25pm
Msg #235946

Re: One doc was a pasture leasee option agreement, and the other

I knew affidavits usually require jurats, but where/how am I to know that most recordable docs require acks? I was NEVER ever EVER told this, EVER, and this is the FIRST time in 5 years this has happened. WHY must they be acks? What's the dang difference? Sorry, but I am frustrated as I do my best to be careful and do things right. Am I really that dense? It has never been mentioned in any of my training classes. I must be losing my marbles.

Reply by Terri Garner on 2/19/08 4:12pm
Msg #236057

Re: One doc was a pasture leasee option agreement, and the other

NOT IN CALIFORNIA. CA notary Law clearly states it is ILLEGAL for the CA notary to determine in anyway (unless they are an attorney and prepared the document) what type of notarization is to take place when the document does not have any wording on it. Even if they THINK they know which one to use.

The determination is made by the presenters of the document or the preparer of the document.

Believe it or not there are documents that require a jurat that is recorded. An Affidavit of Death of Joint Tenant is one. It's a jurat, not an acknowledgment.

Terri
Lancaster, CA

Reply by LKT/CA on 2/18/08 10:51pm
Msg #235931

<<<.......original Jurat which was STAPLED to the document ..........At the signing, all the signers signed the Jurat.>>>

Why would the signers sign on a loose Jurat certificate?

Reply by Maureen_nh on 2/18/08 10:57pm
Msg #235935

This sounds like a DOT or mortgage, which needs an ack as oppposed to a jurat.

I think that whoever was telling you what to do either was not clear or you misunderstood.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/18/08 11:22pm
Msg #235945

Nope, neither.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/18/08 11:21pm
Msg #235944

Because the jurat has spaces for signatures, and

they wanted to 'play it safe' and sign everywhere it looked required. I have a pad of CA Jurats with affiant statemtents - which even include a place for thumbprints as well as a place for "signature of Document Signer No 1 and 2"

Reply by Ernest__CT on 2/18/08 10:54pm
Msg #235933

Contact your Secretary of State and explain ...

... exactly what occurred. Don't get caught in the middle. Get a written opinion.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/18/08 11:18pm
Msg #235941

I did, and they provided me zilch! They would not give me

any kind of answer what so ever!

Reply by Susan Fischer on 2/19/08 1:55am
Msg #235959

"I asked them if they wanted an Ack or Jurat, explained each, and they chose a Jurat, and the signing went as usual."

Seems to me, that since you have complied with the request to administer an oath and complete a jurat, absent an accompanying certificate for the document at signing, you fulfilled your notarial duty within the scope of your commission and state laws. The fact that the requestors were mistaken as to the type of certificate needed for the document (whether to be recorded or not,) is outside your scope of duty and authority to suggest a different certificate.

While you could conduct a re-sign with a differently requested certificate were the signers available, the fact is that one is not, and the onus of responsibility lies with the original deciders to find a workaround solution to recordation, not you. If *you* had chosen the 'wrong' certificate, different story. (This assumes the four signers called you, not a SS or other entity to which you no doubt would have called for direction.) (BTW, I think the county recorder isn't a notary.)

JMHO

Reply by JanetK_CA on 2/19/08 2:13am
Msg #235960

All good points. I'd just add that, if I remember the original post correctly, perhaps the wrong party was asked. Whenever possible, I ask the party that prepared the document, not the parties that are signing the documents. The latter usually don't have a clue and the former are the ones who should know what the requirements are.

This might be one of those situations where your best bet would be to talk to your own attorney. I would never trust the NNA hotline and it seems that lately the SOS office isn't much more help.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/19/08 12:52pm
Msg #236007

By the way...

The call came in on Christmas Eve, and from the signers. They were in a hurry as two were leaving to go out of the country later that day on vacation. I believe they may have prepared the documents themselves.

The county recorder's office person who handled this 'used to be a notary' and said I should have already known to use an ACK. They told the signers when they went to record it to have me REMOVE the original Jurat from the documents and replace them with the ACK. I was not willing to do that.

The CA notary Law Primer states that after asking the document signer what type of notarization is required, that if the signer does not know he or she (not the notary) should contact the document's issuing or receiving agency to determine this. The decision is never the Notary's to make unless the Notary is also an attorney. So, how does a signer do this if it's Xmas Eve and they have to do the signing right then and there, and there is not receiving agency to call???

This all would be a moot point if the training and resource books teach you to contact your county recorder at the time you receive your commission to ask if they have any preference to what kind of notarization they require to record documents...and how to then "advise" the signer without going against the rule not to advise clients of this matter. I didn't honestly know it was even an issue because this is the first time in 5 years this has even come up. One would think the county might prefer a jurat since an oath has been administered and the signers were present before me when they signed the documents. Why would it even matter to them if they were Jurats or ACKS? Am I really that out of it?

Reply by sue_pa on 2/19/08 9:41am
Msg #235972

I agree with Susan Fischer

you did what was required, you're out of the mix. Let them 'fix' it or redo it entirely.

I also think anyone who holds themselves out to do a job by advertising and charging for their services should know the basics and a basic is that recordable docs require acks. - not positive but I believe this is everywhere.

You also said in one of your posts something along the lines of why an ack rather than a jurat, what's the difference? If you don't know the difference and the purpose for each ...

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/19/08 12:33pm
Msg #235997

Interesting points, however....

All of my training, all of my resource reference books say the same. Not ANYWHERE do they state that recordable docs are to be ACKS only. If I have not been taught this, or - or to even been told it might be an issue, then yes, I agree with you. However all my education has said that I can not determine what type of notarization is needed or required, and to do so would be practicing law and against the power/scope of my position in CA as a Notary. Just HOW is a Notary supposed to automatically know anything different? All the reference books say the same. I did exactly that. If indeed we are to tell clients to use a particular form over another, then we should be taught that, under what circumstances, and it should be included in the reference books I keep on hand. However, that conflicts with the direct instructions NOT to advise the client what form to use.

Also, I DO know the difference between an ACK and Jurat - at least here in CA, not PA.

Reply by LKT/CA on 2/19/08 12:40pm
Msg #236001

Re: Interesting points, however....

The issue was never about your methods...It's "what do we do about this county clerk who wouldn't accept the doc as it was notarized?" And the clerk's answer of "that's the way it's always done" is not a reason to reject the doc. I would go back there and ask for someone in charge - the county clerk "over" the county clerks.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/19/08 12:57pm
Msg #236009

Yes, I've been thinking of doing just that

I don't want to make anyone at the county "wrong", (or an enemy out of this situation!), however I have been considering taking copies of all my training, the law primer, etc. that covers this issue and get clarification. Unfortunately, I cannot drive now due to recent surgery, so I thought perhaps I'd write a letter and fax it with the copies of my reference material instead.

Reply by Ernest__CT on 2/19/08 3:11pm
Msg #236040

Faxing sounds like a good plan. Please let us know! n/m

Reply by Susan Fischer on 2/19/08 4:31pm
Msg #236062

Agree, here. County Clerk has the authority to

decide what kind of certificate the document generators want?

I can't remember the doc in this instance, don't have time to look, but, seems to me that if the cert complies with notarial law, is complete, readable, and otherwise in order, what the heck does the clerk care?

(Sometimes, people in official capacities tend to believe they have more power than they actually possess.)

Bottom line, actually appearing, being properly identified, actually signing, and actually swearing as to the truth of the matter seems just as valid as actually appearing, being ID'd, and acknowledging his/her signature is on the document. What could be the problem?

Reply by BrendaTx on 2/19/08 4:46pm
Msg #236063

Susan and LKT: Regarding the certificate...

**And the clerk's answer of "that's the way it's always done" is not a reason to reject the doc.**

LKT -- I agree: It's not the notary's fault, technically. The signers chose the wrong certificate.

However, law decides what the clerk accepts. So, yes, if CA has (like most states do**) a law that says recorded documents must have an acknowledgment...well, by golly, an acknowledgment it is. So, there is nothing to "do" about the county clerk. The clerk is following the law.

Jurats aren't the certificate of recordable documents. Hence, the reason LKT couldn't find the rule in her handbook about it being okay for them to conform to another state's. No need for any Tx title company to make that request of you because jurats aren't on recordables for the sake of recording.

**(Texas has changed this requirement in our state by special ruling of the Attorney General when something similar happened...a jurat certificate, not an ack certificate was presented and the clerk rejected it. The Tx AG ruled that the clerk did not have to determine the correctness of notary cert and reject or accept. If it had a complete notarial certificate of any kind it should be accepted. HOWEVER, the ruling goes on to say that it is the preparer of the document who is ultimately responsible. If it isn't sufficient, then it might not record even though it is entered into the county records. Just because the clerk accepts it in Texas doesn't mean it's actually recorded in the public records.)

Reply by Susan Fischer on 2/19/08 6:52pm
Msg #236087

Ahhh. Brilliant explanation, many thanks! n/m

Reply by LKT/CA on 2/19/08 7:16pm
Msg #236095

Pearls of wisdom. Thanks so much, Brenda!! n/m

Reply by BrendaTx on 2/19/08 7:31pm
Msg #236098

Thank you, Susan and LKT for the kinds words.

It kind of makes things make sense, doesn't it?

Reply by BrendaTx on 2/19/08 5:02pm
Msg #236064

all sonoma...if I weren't at work I'd find it for you, but..

**All of my training, all of my resource reference books say the same. Not ANYWHERE do they state that recordable docs are to be ACKS only.**

...if you will research your property and conveyance laws of the State of California that's where you will find the requirement of an ack...not a jurat.

Reply by ALL SONOMA MOBILE NOTARY - Judith Neeley on 2/19/08 6:16pm
Msg #236077

Interesting - property and conveyance laws - am I

supposed to know those laws too? We were not taught any of this in notary training. IF this were true, one would think all the notary schools and training manuals and tips etc would mention this huge fact. I don't even begin to know how to research property and conveyance laws to find this out. Even our state test included questions to the fact that we are not to decide/choose which notary service to choose. No where has it been mentioned otherwise.

I'm thinking of contacting County Counsel and see what they say, too. Wish I could drive! I would prefer to go in person. I'll post again when I get any new news or an update.

Thanks to all of you for responding. It's much appreciated.

Reply by BrendaTx on 2/19/08 7:28pm
Msg #236097

There's no IF Judith.

**We were not taught any of this in notary training. IF this were true, one would think all the notary schools and training manuals and tips etc would mention this huge fact. **

I didn't just pull this out of my rear...this huge fact is true. And, no notaries are not required to know it. No one said you were.

See Page 141 - Principal Instruments of Transfer - From your state's DRE:
http://www.dre.ca.gov/pdf_docs/ref07.pdf
"Many instruments are not entitled to be recorded unless acknowledged. Unless by statute
an acknowledgment is made essential to the validity of an instrument, the instrument itself
is valid between the parties and persons having actual notice of it, though not
acknowledged. The time of acknowledgment is almost invariably immaterial if the rights
of innocent third parties do not intervene."