Posted by LC/AZ on 5/21/09 9:48am
Msg #289454

Furious with FASS

FASS just hung up on me, and said they would find another notary, because I told them I could not certify capacity on a Deed of Trust. Within the notarial block, it stated that the borrower was unmarried. I told them that I would have to cross the "unmarried" part out, and initial it. I have no way of knowing if the borrower if married or unmarried. I told them a notary would be breaking the law, if they proceeded to notarize a document that stipulates capacity. Am I wrong?

Reply by janCA on 5/21/09 9:50am
Msg #289455

Depends on your state laws concerning capacity. CA you can't, but many states you can. Check your handbook or call your SOS.

Reply by Linda_H/FL on 5/21/09 9:56am
Msg #289456

Yep...check your state's handbook for proper procedure...

But, if it were me I wouldn't even have discussed it with them - I'd have just done the signing, correctly complete my certs (and if it means crossing out the capacity, then so be it) and returned the package...they may never have noticed, and if they did and called me up on it, THEN I'd let them know my state's notary procedure.

MHO

Reply by MW/VA on 5/21/09 10:03am
Msg #289459

I agree with Linda. They may have misunderstood & thought you wanted to cross out the capacity on the DOT, instead of in the notary certificate. IMO we check with them if there is an issue with the docs, but not regarding "adjustments" in the notary certificate.

Reply by Linda_H/FL on 5/21/09 10:04am
Msg #289460

From page 35 of your manual

5. By any public officer, trustee, or personal representative:

State of _______________________________
County of ______________________________

The foregoing instrument was acknowledged before me this (date) by (name and title of position).

(Signature of person taking acknowledgment)
(Title or rank)
(Serial

Reply by Dennis D Broadbooks on 5/21/09 10:14am
Msg #289462

Strictly Speaking...

...you do need to follow the State of AZ (you need to the legwork...don't rely on anyone's perspective here) & their guidance in this regard, but if they're anything like MO you may have the latitude to go either way in this situation. I say "may" because even though I'm "permitted" in MO to Notarize a signer's signature on a document with the capacity or title of the individual in the Notary certificate, I always cross out the additional language if it references husband, wife, married, or single. My rationale is there isn't anything the signer can produce which will "prove" to me they're married OR single. A marriage license doesn't mean anything because the husband & wife could've been divorced yesterday. And just how does one go about "proving" you're single if you've never been married?

Reply by Julie/MI on 5/21/09 10:53am
Msg #289465

recording laws vs notary laws

MI we can do capacity (which will in no way help the original poster) and in fact, we used to reject them in the recorder's office as the marital status HAD to be in the notary block to record.

Just another situation where those that make the title/recording laws of the state have no clue about the notary laws and practices.

Just makes me laugh that CA, which having been a reader on these boards for so long, seems to have the strickest laws, which you would think would REDUCE the amount of ?'s, or those that have differing state laws, but somehow think that capacity and/or fingerprinting and changing their own notary laws cause a heep of trouble for themselves.

Reply by janCA on 5/21/09 11:40am
Msg #289470

I prefer the no capacity.

It's really quite simple. One just has to read the handbook. There are no gray areas when it comes to this notary law.

Reply by Marian_in_CA on 5/21/09 12:32pm
Msg #289475

Same here...

I really like that CA has such strict rules... it takes the guesswork out of most things, and it allows me to have an authoritative reference to justify my actions.

As for the original post... the notarial wording is the notary's responsibility so I'm not sure why you'd need to discuss it with FASS.

Reply by Gary_CA on 5/21/09 7:12pm
Msg #289528

I can prove it

>>And just how does one go about "proving" you're single if you've never been married?<<

Even the most cursory overview of my nasty habits and chauvinistic attitudes would leave no doubt whatsoever that I'm single.

Reply by Dennis D Broadbooks on 5/22/09 9:35am
Msg #289583

Case Closed!

And speaking of closing a case...how 'bout those Cards?! Limiting the small bears to 2 runs in 27 innings. Pineiro, "The Carp", & Wainwright! It doesn't get any better than sweeping the Cubbies!

Reply by PAW on 5/21/09 12:31pm
Msg #289474

That's not capacity, it is marital status

Some states allow you to include a representative capacity, some don't. Showing a status in a notary certificate implies that you are certifying their marital status which you cannot do, unless you know, without question, that the status is correct. Florida allows (albeit requires) that the representative capacity of a signer signing in a representative capacity (e.g., trustee, attorney-in-fact, president) be shown in the notarial certificate. However, marital status is not a capacity and therefore is not shown. Whenever I see John Jones, a married man, or single man, or whatever marital status, I always cross it out.

Reply by Julie/MI on 5/21/09 12:36pm
Msg #289476

why I like being the Indian

I could never own a title company or signing service and deal with notaries that take it upon themselves to decide interpertations of the laws and crossing stuff out.

In fact, I scratch my head sometimes and wonder why all mortgages are not closed in-house

Reply by Philip Johnson on 5/21/09 12:47pm
Msg #289478

So Julie you're familiar with 50 state notary laws?

Is it not my responsibility to know WA Notary laws and live within their guidelines? Or am I to defer to CA or MI title companies or signing services on how they do it?

The law is the law and is there to be followed to the best of one's abilities and those are the people I'd want doing my business if I owned a TC.

Reply by Marian_in_CA on 5/21/09 12:56pm
Msg #289479

Re: why I like being the Indian

Yeah, but Julie... the notarial block is MY business as a notary. You bet I'm going to follow MY state laws and not computer generated notarial block of some software program.

That's why I love CA laws. There is very little room for misinterpretation.


I just *DARE* an escrow/title/lender to get pissy with me about crossing out or replacing one of their non-compliant certs. Bring.It.On.

Reply by CaliNotary on 5/21/09 1:14pm
Msg #289481

Re: why I like being the Indian

"I just *DARE* an escrow/title/lender to get pissy with me about crossing out or replacing one of their non-compliant certs. Smile Bring.It.On. "

I just had this happen 2 days ago with a Texas TC. I simply emailed her the relevant info from the CA notary manual, she said thank you and that she'd let the lender know. No fuss, no muss.

Reply by Marian_in_CA on 5/21/09 1:42pm
Msg #289488

Re: why I like being the Indian

Same here... and that usually ends the conversation. I can't imagine the anyone, when presented with actual state code would continue to press the issue... that's kind of what I meant when I dared them to cross with me about it.

Referring to what Julie said about not liking notaries who interpret their state laws... well, that kind of IS our job in a way. Somebody back east isn't going to know CA notary law better than a Ca notary... or so I'd hope.

Reply by Gary_CA on 5/21/09 7:16pm
Msg #289530

Can you find the code for not certifying capacity in CA?

I'm not arguing the point... but I have searched that entire handbook with both my computer and my eyes and the only reference I can find is a paragraph that says we can use other states' froms as long as we do not certify capacity...

It's an easy inference from that and I've made it like everyone else, but it's not a real clean clear statement. I'm thinking it might be in the actual B&P Code rather than the text of the handbook...but I've never found more than that single somewhat obscure reference.

Reply by PAW on 5/21/09 7:34pm
Msg #289535

...find the code for not certifying capacity in CA? pg 11

[quote]
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.[end quote]
Ref: CA C § 1189(a)(2)(c)

The inference is if you can't use capacity on out-of-state certificates, you can't use them on in-state certificates either.

Reply by Gary_CA on 5/22/09 11:50am
Msg #289600

Yep that's what I found

and I've followed your same logic...no problem.

But I assume that somewhere there's a clear statement of the "determinations and certifications not allowed by California law." Which I've never found.

Then we get this argument that if you put capacity on the certificate you're only stating what the signer claimed, not certifying it.

It would just be nice if there was a line in the code regarding the acknowledgement that simply said

"Notary Public shall not certify any capacity or status, only the name of the signer shall appear after 'personally appeared before me' on the certificate."


Easy breezy...they've got time to monkey with our notary law every year on lesser points, why not this one?

Reply by PAW on 5/22/09 1:39pm
Msg #289631

Re: Yep that's what I found

The conundrum is that many laws, statutes and precepts do not specify the "what can't be done", but only the "what is to be done". So, if it isn't specifically stated, then it may not be authorized. For example, the law doesn't say you can't take a finger or thumbprint for all documents. It only states that you must for certain documents. Does that mean you can't take thumbprints all the time? Well, it doesn't authorize you to do so but it doesn't forbid it either. Leaves lots of things in the gray area.

Reply by dickb/wi on 5/21/09 1:21pm
Msg #289484

julie...it is not the document makers privaledge to pre...

fill the notary blocks....they do not belong to the document maker but to the notary and should be filled only by a notary public as that is a notaries testament as to the autenticity of the signatures.......wi does allow capacity and marital status in a notary block but you better be sure and able to prove it if you sign the block, there fore i cross out every thing but the names of the doc signers if the notary block has been pre filled by the document maker.....the notary block is not part of the document but a document unto itself and in the realm ofthe notary only........

Reply by dickb/wi on 5/21/09 1:40pm
Msg #289487

sorry about the misspell... n/m

Reply by Marian_in_CA on 5/21/09 1:45pm
Msg #289489

Re: julie...it is not the document makers privaledge to pre...

That's right! Many people put notarial wording on a document as a convenience to the notary... but that doesn't make it part of the actual document at all.

I'm still confused as to why the original poster called FASS over the notarial certificate to begin with.

Reply by MrEd_Ca on 5/21/09 2:06pm
Msg #289494

What does the CA SOS have to say about this?

I got into a tiff about this sort of thing a while back w/Chase before they took over WAMU. They're attorneys swore that it was ok to have a signers name, followed by status or representative capacity, pre-printed in the notary block. I disagreed & it cost me a couple of jobs.

Anyway, I called up the California SOS & asked them about it. After a long wait on hold, the person there told me that it was ok to have that verbiage because, according to this person, the notary is only notarizing the persons name, on the basis of satisfactory evidence, and the only mention of capacity in the certificate is that of the signer, acknowledging to the notary, that they signed the document in their authorized capacity, whatever that capacity is (individual, trustee, whatever). The SOS employee I spoke w/said that the Ca All-Purpose Acknowledgment has no wording that the notary is certifying a signers capacity, the signer is certifying that capacity whatever it is & not the notary.

This answer was not what I expected. I made some notes on this, which I cannot find, & plan to, when I have more time, submit this question in writing to the SOS.

PS--- I am just the messenger here relaying to you all what the SOS told me & I am not the legal expert on this subject.

Reply by Marian_in_CA on 5/21/09 3:06pm
Msg #289499

Re: What does the CA SOS have to say about this?

Not everyone in the SOS's office knows what they're talking about. Most of the time, they just say, "Refer to the Handbook." In this case, they're dead wrong, perhaps they misunderstood what you were asking. The handbook is absolutely clear on this...


"the Ca All-Purpose Acknowledgment has no wording that the notary is certifying a signers capacity"

Correct. It does not. It only says that the signer acks to signing in his/her/their capacity... we're only certifying the person himself.

Now, CA law does provide for us to use ACks for documents going out of state.... but it is clear that we cannot certify capacity, even then.


If I see something like that pre-printed... I just use a correct block. I don't need anyone's permission to use an specific notarial block or wording. I have state law, and that's what I follow. Most attorneys don't even understand notary law.

Reply by BrendaTx on 5/21/09 6:14pm
Msg #289521

Re: What does the CA SOS have to say about this?

*The SOS employee I spoke w/said that the Ca All-Purpose Acknowledgment has no wording that the notary is certifying a signers capacity, the signer is certifying that capacity whatever it is & not the notary. *

Ed, this sounds accurate to me.

If a notary has experience prior to the loan signing biz as being a notary it is likely they will have a better understanding of this. The loan signing biz courses have made notaries feel way more responsible for notarizing documents, the content and the names on the documents and even the statements made by the signer than ever should have happened.

I think it all started with the xyz teaching notaries that they must match ID *exactly* to the way the signer holds title. That's just me.

Reply by JanetK_CA on 5/21/09 9:39pm
Msg #289553

I see it a little differently.

"...the signer is certifying that capacity whatever it is & not the notary."

I agree, but if I understand correctly, we're talking about something that a third party has added to the notary block, not the body of the document. It's the notary, not the signer who is signing the notary block (now "under penalty of perjury" here in CA) and who is legally responsible for it's contents. Anytime someone pre-prints content into a notary block and adds anything other than the names for which I have "satisfactory evidence", I also line it out or replace the whole certificate.

My guess is that the person in the SOS office either didn't know what they were talking about or didn't really understand the issue. (Or it was ME who didn't understand the issue? )

Reply by Julie/MI on 5/21/09 3:13pm
Msg #289500

Dickb

"But you better be sure and able to prove it if you sign the block"

Where on earth did that come from?

I appreciate a prefilled in notary block. Saves me a lot of writing

six closings tonight, so I'll let ya'll hash the remainder without me.

Reply by BrendaTx on 5/21/09 1:55pm
Msg #289493

Does your notary handbook mention "capacity"?

In Texas (for the record) our notary educational materials say nothing, zero, zip, notta for or against statement of "capacity" in a notary certificate. People in Texas get confused (I think) because the handbooks floating around mention capacity because the "experts" writing them are often from California, and frequently, the xyz.

Texas notary rules say nothing about it, but does provide sample acknowledgments and jurats for usage when one is not provided on the document. These include capacity regarding entity officers that the notary has no way to verify, yet it is acceptable.

If it is there, I don't strike it.

Reply by LC/AZ on 5/21/09 4:55pm
Msg #289510

I, originally, called FASS about another question, but.....

Happened to mention that I would be striking (not asking) the marital status from the notarial block on the deed. But, today, I called the S.O.S, and was told that the way to circumvent the problem was to ask the signer if he was unmarried, as the notarial block had stipulated. She told me this was acceptable as long as he acknowledges his status. I said, "Hmmmm, there's no actual statute that clarifies what to do? She said, "Not really." I told her I feel I am attesting to the truth of what's in the notarial block by signing my name. You would think after doing this for several years, that I would have all the answers, but, now, after today, I walking around more confused than ever!

Reply by PAW on 5/21/09 5:04pm
Msg #289512

Re: I, originally, called FASS about another question, but.....

OOC (Out of curiosity) was there a Marital Status Affidavit in the package? Many packages that I've done in the past had this one-page affidavit asking marital status.

Reply by LC/AZ on 5/21/09 5:43pm
Msg #289519

Re: I, originally, called FASS about another question, but..

Yes, PAW, I've had many loan packets that had the marital status aff included, but this one didn't.

Reply by BrendaTx on 5/21/09 6:06pm
Msg #289520

Re: I, originally, called FASS about another question, but.....

*She told me this was acceptable as long as he acknowledges his status.*

That's true of all notary certs, at least here in Texas.

The signer has declared certain things to the notary.

The notary signs off in agreement that certain things have been acknowledged or declared (or sworn) to the notary, not that the notary can certify those things absolutely.

Reply by Gary_CA on 5/21/09 7:30pm
Msg #289533

Yes but

Our CA Ack says...

personally appeared ______________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.

*******

So I'm swearing to the content of my ack... if the signature line says John Doe, trustee and the ack says John Doe... no problem...he acknowledged that he executed the same in his authorized capacity as trustee, as is made obvious by the word on the signature line.

But if the ack says "personally appeared John Doe, trustee" I'm certifying under PENALTY OF PERJURY and in violation of State law that the foregoing is true and correct.


Here's the solution... don't ask, don't tell. I've never had a problem just crossing it out, except for the one time that I asked if I should line it out.

Reply by BrendaTx on 5/22/09 10:30am
Msg #289590

Re: Yes but...G:

All I can say is "Thank goodness that the xyz has not been allow to influence and bloat the rules in the State of Texas." ...in fact, as I recall...our lawmakers sent them packing.