Posted by GWest on 1/1/08 12:11pm
Msg #228482

CA Notary Question 2008 Subscribing Witness Ack

Has anyone heard if there is new wording for the Subscribing Witness Acknowledgement? I have not seen this mentioned in any of the updates and even though it is hardly ever used, I want to make sure I have the correct wording if this is requested.

Reply by Therese on 1/1/08 12:38pm
Msg #228484

there is no mention of it from the SOS in the newsletter
http://www.sos. ca.gov/business/ notary/forms/ notary_newslette r_2008.pdf

Reply by Therese on 1/1/08 12:38pm
Msg #228485

http://www.sos.ca.gov/business/ notary/forms/ notary_newslette r_2008.pdf

Reply by Therese on 1/1/08 12:41pm
Msg #228486

sorry one more time

http://www.sos.ca.gov/business/notary/forms/notary_newsletter_2008.pdf

Reply by GWest on 1/1/08 12:54pm
Msg #228488

Re: sorry one more time

I have read all the different newsletters and articles written, but there has been no mention of the Subscribing Witness Ack. in any of them. I'm sure it will be addressed when the 2008 handbook comes out. I updated all my forms and this was the only one I wasn't sure about. I have sent an email to the SOS inquiring as to any changes.

Reply by BarbaraL_CA on 1/1/08 2:30pm
Msg #228500

It's an Acknowledgement, so...

it would fall under the new wording. The change has to do with wording on Acknowledgements, therefore I would think that pertains to ALL acknowledgements. JMO

Reply by GWest on 1/1/08 7:39pm
Msg #228514

Re: It's an Acknowledgement, so...

There is much more to a subscribing witness acknowledgment than a standard acknowledgement.

1) Subscribing witness must say, under oath, that they personally know the principal and saw the principal sign the document or heard the principal acknowledge that they signed the document.
2) The Notary must identify the subscribing witness based on personal knowledge or identity must be proven to the notary by the oath of a third person/credible witness who personally knows the subscribing witness and the third person must also be personally known to by the notary.

Since everyone must be personally known by someone involved, the new standard acknowledgement rules don't apply to the 2007 Subscribing Witness Acknowledgement. You can add the "Under Penalty of Perjury" clause, but what about personal knowledge portion, since you are required to personally know the subscribing witness or the third person / credible witness as stated above. I'm not sure how the SOS is going to deal with the personal knowledge portion of the Acknowledgement.

Reply by BarbaraL_CA on 1/1/08 10:10pm
Msg #228524

Here is the answer as explained by the NNA

http://www.nationalnotary.org/pdf/ca_new_law_3.pdf

Reply by BarbaraL_CA on 1/1/08 10:17pm
Msg #228526

and also...

http://www.nationalnotary.org/pdf/ca_new_law_4.pdf
which answers the question: Is a Notary required to obtain an ID card from a personally known credible witness identifying a subscribing witness?
which in a nutshell states "Therefore, though the application of Section 1185 to Section 1196 may not have been planned or considered by the drafters of AB 886, the safest course and best practice is to identify all credible witnesses, personally known or otherwise, through ID cards — even those credible witnesses relied on to identify subscribing witnesses."

which is not the same as their explanation for the original question "Can a California notary use “personal knowledge of identity” to identify a subscribing witness?" where they say: "Therefore, unless subsequent “clean up” legislation amends Civil Code Section 1196 to remove personal knowledge, Notaries may continue to identify a subscribing witness based upon personal knowledge, or upon the vouching of a personally known credible witness, utilizing the old definition as a standard."

So the bottom line is, WHO KNOWS????

Reply by Joan Bergstrom on 1/2/08 12:25am
Msg #228532

Re: and also...

The 2007 law for subscribing witness has not changed in 2008. You don't need to use ID when using a subscribing witness in CA.

Reply by Terri Garner on 1/2/08 11:03am
Msg #228595

Re: Here is the answer as explained by the NNA

Sorry, I don't go by anything the they say. I have ZERO confidence in their information.

Terri
Lancaster, CA

Reply by Gary_CA on 1/2/08 9:43am
Msg #228564

I don't think you can do a subscribing wittness anymore.

Has to be personally known, or the credible has to be personally known, and we can no longer do personally known.

I'm not a lawyer, this is new, so I'm probably wrong... but I'll tell ya what, until some clear clarification comes, this notary just will not do a subscribing wittness, call someone else, end of story...

The paragraph from the (now old) handbook...

4. The notary public must identify the subscribing witness based on personal knowledge
or the identity of the subscribing witness must be proven to the notary public by the
oath of a third person (credible witness) who personally knows the subscribing witness.
The credible witness must be personally known by the notary public (Civil Code
sections 1195, 1196); and

Reply by Terri Garner on 1/2/08 11:00am
Msg #228594

Re: It's an Acknowledgement, so...

Actually, it's a JURAT, the SW swears that the information is true, i.e., signature of the principal, etc.

Yes, you can still do a SW Notarization, the SW now has to provide ID in addition to being personally known by the notary, just as you would when using one CW to identify the document signer.

Terri
Lancaster, CA

Reply by BarbaraL_CA on 1/2/08 12:41pm
Msg #228628

Now that makes sense, Terri n/m

Reply by GWest on 1/2/08 1:43pm
Msg #228646

Re: It's an Acknowledgement, so...

So far I have not been able to get through to the SOS. I will keep trying the SOS and let you know what they say.

As per the NNA, the Acknowledgement has not changed at all at this time, including the penalty of perjury clause, which is not to be included in the Subscribing Witness Ack. They recommend you do obtain ID for the Subscribing Witness as well as the Credible Witness if one is used. I believe that I would also want the Subscribing Witness to provide to me a copy of the ID for the principal. What do you think?

Reply by GWest on 1/2/08 1:53pm
Msg #228648

Re: It's an Acknowledgement, so...

Correction, the SW should provide the Principals ID Information, DL or Passport#, name on ID, address, expiraiton, etc., to be included in our journal for future reference.

Reply by Terri Garner on 1/2/08 6:31pm
Msg #228700

Re: It's a Jurat - Subscribing Witness Jurat

Subscribing Witness Jurat or Proof of Execution is just that, proof by the subscribing witness that the SW swears they saw the principal sign or heard the principal acknowledge that they signed the document.

FYI - you can get all the information you want from the SW, but I sure as heck wouldn't put information about the principals ID in my journal obtained from a second hand source. It's "heresay." Wouldn't be admissible, since not provided to me by the actual person that the ID is for, thus "I" couldn't confirm that it is correct.

However, I'm aways for more info is better, just not in this scenario.

Terri
Lancaster, CA

Reply by GWest on 1/2/08 8:37pm
Msg #228730

Re: It's a Jurat - Subscribing Witness Jurat

My understanding that one of the reasons the law was changed requiring ID was so that there was a evidence of identity besides the Notary's personal knowledge, so if the Notary was no longer alive or unlocatable, the notary journal would have a record of the principal's ID. IMO, in this case the ID of the principal would be there as a note, not that the Notary confirmed that it was correct. I agree that it is only heresay, but it may help track down the principal if the jurat was ever disputed.

Reply by Terri Garner on 1/3/08 11:13am
Msg #228827

Re: It's a Jurat - Subscribing Witness Jurat

Law changed regarding obtaining ID of the person in front of you, not anyone not in front of you.

It's not wrong to get the additional information, I just stated my reasons why I wouldn't do it, in this situation, that's all.

Terri
Lancaster, CA