Posted by Marian_in_CA on 4/18/09 1:37am
Msg #285565
Why do they like to confuse us?
I know plenty of others have seen it but it finally happened to me tonight. Talk about bone head moves. I have been fighting a migraine all day and while I felt fine at the signing, I knew I was a little bit tired.
Had an affidavit that includes wording in the document about swearing under oath. Got it. Put the borrower under oath, included the list of the of the documents he's swearing to (including this one). Good enough.
we get to this affidavit and I see the notarial block is an acknowledgment. This is a big package (VA) with over 10 notarizations and I think, "Oh, this ack is all wrong..." pull out a loose form... fill out, seal... the whole thing. Move along... didn't even click until I got home to review it all. That should have been a jurat. At least I swore him in properly on it and it was a loose form. And yes... it was supposed to be a jurat since the document says, "I swear under oath..."
Why do these guys put swearing and oath verbiage in the body of the document and then toss on an acknowledgment? I won't even begin to wonder why they threw in co-borrower docs when there is no co-borrower.  It's not even the end of month rush quite yet.
I'm taking my Maxalt and going to bed. Migraine be gone.
| Reply by Gary_CA on 4/18/09 2:06am
Msg #285567
You're right, but they get the ack...
If an ACK they want, and ACK they shall have... otherwise you're "advising in the selection of a legal document."
Some packages have ACKS on everything, even depositions and sworn statements that start with all the swearing in language.
OBTW, if you just use the act they put on there you'll never hear about it again, and if you correct it, you're gonna get a call, guaranteed.
It's not "right" but it's not illegal... you can acknowledge that they executed a document that contains an oath. Does that make it a sworn statement? Hmmm... a question for a lawyer...and the answer probably depends on which side's paying him and how much.
It's a mess, but don't fix their mess, you're gonna get a can of worms and not one penny for your trouble.
| Reply by Marian_in_CA on 4/18/09 2:23am
Msg #285568
Re: You're right, but they get the ack...
Yeah... I agree. Like I said, bone head move on my part. There's no harm done yet, fortunately. It's an ACK for a CA property, though.
Of course the ACK only says, "This instrument was acknowledged before me on _______ by ________."
Then asks for a notary seal/signature. So, I was likely right to grab the ACK form anyway.
This is a CA property. Title and lender are back east.
I don't like second guessing myself. grrrr. I only do that when I'm tired.
| Reply by Robert Koehler on 4/18/09 8:21am
Msg #285576
Re: You're right, but they get the ack...
If the document has the venue at the top and then has the wording "Before me, the undersigned authority, personally appeared ......, being duly sworn..." or something along those lines, that is part of the notarial certificate, albeit one that is split up into two parts. However, the part at the end of the document, where you actually sign, should be the same notarial act. That's not UPL, that's using your notarial authority to correct a certificate that doesn't comply with statutes. If anywhere in the document it states that the signer is being sworn, then a jurat should be used. A deposition, affidavit, or sworn statement can NOT be used with an acknowledgment.
| Reply by PAW on 4/18/09 9:27am
Msg #285579
Re: You're right, but they get the ack...
That certainly is one way to look at the document. In Florida, we are covered by statute to use a jurat when an oath must be given.
----- ----- ----- ----- -----
117.03 Administration of oaths.—A notary public may administer an oath and make a certificate thereof when it is necessary for the execution of any writing or document to be published under the seal of a notary public. The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required.
----- ----- ----- ----- -----
The last sentence in the clincher.
| Reply by Marian_in_CA on 4/18/09 10:45am
Msg #285582
Re: You're right, but they get the ack...
Ooooh, I like that... for FLorida.
In CA, all I have is this, "The jurat is identified by the wording “Subscribed and sworn to (or affirmed)”
contained in the form."
By 'form' they are referring to the notarial certificate, not the document itself. This form had no such wording...even though the document was titled as an affidavit and within it contained the words, "I swear under oath..."
So, ideally... the person preparing this document probably should have selected jurat wording.... but they didn't. And Gary is right... I can't determine that it's a jurat unless the 'subscribed to...' wording exists in the 'form'. Since it didn't... an acknowledgment is what they got. In this case... it's likely not even going to be an issue. It's one of many affidavits in the package where he was affirming his identification information.
I knew it had to happen to me eventually. No harm done in taking an oath on this since he was swearing to 11 other affidavits, as well. Just a technical glitch.
| Reply by LKT/CA on 4/18/09 12:10pm
Msg #285594
Re: You're right, but they get the ack...
<<<In CA, all I have is this, "The jurat is identified by the wording “Subscribed and sworn to (or affirmed)” contained in the form.">>>
Actually, we have a code that says a jurat is REQUIRED with any affidavit "subscribed and sworn to"....gov't code 8202b, page 24 of the handbook. I consulted an attorney on this some time ago and he said this: By completing the acknowledgment certificate of an affidavit, the document originator is getting their choice and by ADDING a jurat to this affidavit, the notary is following the law. He said if the affidavit has language showing the document signer is swearing to the truthfulness of contents on oath, then the document warrants a jurat. Do the exact words "subscribed and sworn" have to be in the document, I asked. He said NO.
I then asked the attorney if I'm practicing UPL by making judgments on the wording within the document by deciding which words show that the affiant is swearing on oath. He just laughed out loud and then said NO.
Many of the documents I see that have the jurat certificate with it, do not have "subscribed and sworn" within the document. I has something like, "I depose on oath and state that it is true that.., yada yada, yada. OR it will have the "I certify under penalty of perjury" statement just above the signature line for the signer.
Now, if the client tears off the jurat, that is their business. I know I've followed the law. But I will tell you - I have never had a problem with any TC or any other time I've done this and no one has called to question why I did this, though I typically include a note regarding affidavits and jurats.
| Reply by Marian_in_CA on 4/18/09 12:56pm
Msg #285598
Re: You're right, but they get the ack...
That's good to know, Lisa. Thanks. Perhaps I'm just too tired to think straight. This isn't normal for me!
The handbook says that the "subscribed and sworn" language is in the 'form' though... not the document.
On page 12 it says, "The second form most frequently completed by a notary public is the jurat. (Government Code section 8202) The jurat is identified by the wording “Subscribed and sworn to (or affirmed)” contained in the form."
The 'form' is the notarial certificate... not the document.
In this case, the only wording in the 'form' that I had was this... no mention on the 'form' of swearing or anything similar.
============================================
This instrument was acknowledged before me on _______ by ________.
(notary seal)
Notary Signature__________________
My Commission Expires ____________
===========================================
(and of course it was late and all my contacts on the east coast were not available...the trouble with west signings and east coast lender/TCs/signing services)
When it comes down to it... both answers are likely correct and easy to defend. I suppose I could add a jurat on there as well and make a note...after all, I did already swear him to it anyway. Hee. I have until 4pm to drop this off at the FedEx place. I have made a few calls myself to to others about this, too.
Darn CA nit-picky laws.
| Reply by LKT/CA on 4/18/09 12:50pm
Msg #285597
Re: You're right, but they get the ack...
<<<That certainly is one way to look at the document. In Florida, we are covered by statute to use a jurat when an oath must be given.>>>
In CA, we are also covered by a statute - gov't code 8202(b)
§ 8202. Execution of jurat; administration of oath or affirmation to affiant; attachment
to affidavit
(a) When executing a jurat, a notary shall administer an oath or affirmation to the affiant and
shall determine, from satisfactory evidence as described in Section 1185 of the Civil Code,
that the affiant is the person executing the document. The affiant shall sign the document in
the presence of the notary.
(b) To any affidavit subscribed and sworn to before a notary, there shall be attached a jurat
in the following form:
State of California
County of _______________
Subscribed and sworn to (or affirmed) before me on this _______ day of _______, 20__, by
___________________, proved to me on the basis of satisfactory evidence to be the person(s)
who appeared before me.
Seal________________________________
Signature____________________________
| Reply by Marian_in_CA on 4/18/09 1:04pm
Msg #285599
Re: You're right, but they get the ack...
AHHHH. I see what you mean now, Lisa...
Clearly, it is an affidavit and sworn.... and (b) says I "shall attach" a jurat.
Gary still has a good point, though... if they want an acknowledgment, they should get an acknowledgment, right? We can't just not provide what they ask for.
I've never even considered the idea attaching BOTH to a single signature as you suggested. That seems odd... but the 8202 says I add an jurat... but I can't do that because they want an acknowledgment.
What I want is a nice long nap.
| Reply by davidK/CA on 4/18/09 3:05pm
Msg #285607
My position is...
My position is that if the document uses the word "acknowledges" (or variation thereof) they get an Acknowledgement not a Jurat. The Acknowledgement could be either CA language or other state language as long as it complies with CA law, i.e. no "Husband and Wife" or "It's President".
If the document uses the word "sworn" (or variation thereof) then they get a CA Jurat. No other language can be used.
JMHO
| Reply by LKT/CA on 4/18/09 11:45pm
Msg #285629
Re: You're right, but they get the ack...
<<<Gary still has a good point, though... if they want an acknowledgment, they should get an acknowledgment, right? We can't just not provide what they ask for.>>>
Exactly....they still get to choose. Here's an example of an affidavit that had an acknowledgment certificate attached which I completed and ADDED the jurat. The first sentence starts like this:
I (name of affiant) of full age, being duly sworn according to law, upon my oath depose and say:
<bunch of wording in the middle>
Last sentence above signature line for affiant read:
I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct and that this declaration was executed on the date set forth.
| Reply by Linda_H/FL on 4/18/09 3:02pm
Msg #285604
Re: You're right, but they get the ack...so Paul...
you're saying that if a document starts out with, for example, "The undersigned, being duly sworn, do depose and say..." but the company has an acknowledgment at the bottom for the notary, we are authorized to substitute the certificate and provide a jurat?
I do agree it would require a jurat but I thought it wasn't our call to make - thought it was up to the document creator to determine what kind of certificate they wanted, not us...and doesn't this not extend to the POA situation where an AIF cannot take an oath for the principal but we can't substitute the cert if the creator requires a jurat.
I'm so confused...
| Reply by Marian_in_CA on 4/18/09 3:22pm
Msg #285609
Re: You're right, but they get the ack...so Paul...
Glad I'm not the only one confused.
It's one of those situations where everyone's right...and maybe everyone's wrong. We can't make the call... but for some of us, like CA and FL, we're kind of required to make the call because of the language involved. And in those cases where we know the person is asking for the wrong certificate...especially in those cases (like a signer with a POA) where we know what they're asking is technically illegal... we can refuse on that basis and "educate" them to change their minds... BUT how far does that go before we're making the call and telling them what to do vs. refusing an illegal notarization.
Can't the document preparers make sure somebody with some knowledge of these situations proofs these docs before they go out?
If were working for the TC (in a non-notary advisory proof reader kind of way) and saw the doc I had last night... I immediately say, "Whoa guys... before you start using this, you need to get it right. Is this a sworn statement or not?"
| Reply by Robert Koehler on 4/18/09 7:00pm
Msg #285621
Re: You're right, but they get the ack...so Paul...
If it says "the undersigned, being duly sworn", this requires the notary to place the signer under oath. In that case, you must provide a jurat instead of an acknowledgment.
| Reply by PAW on 4/19/09 7:27am
Msg #285631
Re: You're right, but they get the ack...so Paul...
It's not our call. The statute, imo, is very clear that if an oath is required then a jurat, not an acknowledgment, must be used. In my book, the laws in Florida take precedence over what a lender or title company (or anyone else) tells me. If someone has a problem, I refer them to the statute: "The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required."
It's not too often that laws specify things you can't do, but in this case, it is straight-forward; you can't take an acknowledgment.
Vagueness in laws always seems to arise because a situation isn't explicitly dealt with. My opinion is that unless specifically stated, then it's not an authorized function. For example, comparing signatures on driver's licenses to the signature on the document. Nowhere in the statutes does it state that fingerprints (thumbprint, etc.) are to be collected. Therefore, the notary is not authorized to take the thumbprint. This is not to say the notary can't request a thumbprint, however, the signer can refuse and the notary must proceed without the thumbprint and without question. Fortunately, many of the questionable situations are addressed in our manual. For those that are not, a notary's best judgment is brought into play.
| Reply by dickb/wi on 4/18/09 3:28pm
Msg #285610
Re: You're right, but they get the ack...
i can't begin to tell you how many affidavits i get that have an ack built in, and i know it should be a jurat, but they get back exactly what they send me......i can't believe how many atty's and title co people have no clue...
| Reply by Marian_in_CA on 4/18/09 3:38pm
Msg #285613
Re: You're right, but they get the ack...
I believe it. I even had one attorney tell me recently, "When it comes to notary law, there are some notaries who know more that just about any attorney. In fact, all of the really good notaries I know would make great attorneys."
I know plenty of attorneys and some of them are not all that bright...or just don't care. Most of them, though, tend to focus on a specific area and that's all they know. there are some who I just sit and wonder how they even managed to pass the BAR.
Kind of like how an orthopedic surgeon probably shouldn't be taking out a brain tumor.
| Reply by Lee/AR on 4/18/09 8:29pm
Msg #285624
FWIW: I've seen both preprinted separately on a doc. n/m
| Reply by Art_PA on 4/19/09 3:21pm
Msg #285646
How much extra are you getting paid to revise the lender's documents?
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