Posted by VioCa on 8/26/10 1:38pm
Msg #350582

Was I wrong all this time?

Hello everybody,
Today I signed my own loan docs and had a Notary at my house. When I gave her the DOT acknowledgment to notarize si started printing my full name as shown on the ID even though on the docs there was only the first and last name. I stopped her and asked her to notarize only the way the docs read and after a few arguments she agreed. She mentioned to me that she is a signing agent for over three years, she is always notarizing everything that is on the ID and never had a problem. Now all these years I was under the impression that the vesting, signature and notarizaion have to match. And I am still positive that this is how it should be done but who knows, I could be wrong.
I am asking for your expertize please. I greatly appreciate it.

Reply by MistarellaFL on 8/26/10 1:44pm
Msg #350584

I don't think you're wrong

And in some cases, I'd think docs might be kicked back if my block had a different version of the brw's name.

Reply by MaggieMae_CA on 8/26/10 1:48pm
Msg #350587

I've always printed the names in the acknowledgment as stated on the document being UNLESS there was a name change (i.e. marriage) and then I will use the current last name and have the signer print the current name, formerly known as the name on the document. In all honesty, I think the only time I've needed to do this is on Loan Mods, not actually on a DOT.

Reply by OR on 8/26/10 2:00pm
Msg #350588

I would have called the Title Co from the table. I have never ever notarized and different name then what is printed on the doc. I add the license name variation to the AKA form.

Reply by Susan Fischer on 8/26/10 6:23pm
Msg #350608

Same here, JoAnn. But, more = ok, less is not.

John Jones on doc, John Jack Jones in ack will record.

John Jack Jones on doc, John Jones in ack will not record.

That's in OR, so not much help to CA poster.

Reply by Marian_in_CA on 8/26/10 2:19pm
Msg #350590

"I stopped her and asked her to notarize only the way the docs read and after a few arguments she agreed."

Actually... you may be. Here's why... you're in California. In CA, as notaries... we are not responsible for the contents of the document, and that includes that name(s) printed on them. We are only concerned with the signature/person signing. There is *NO* legal requirement in California (despite popular opinion) that any name in the document match the signature. Why? Because we are not allowed to determine the capacity of the individual signing the document.

Our notary certificates need to match the signature or ID of the person signing, that's it.

Now... some companies may be picky about this, especially if they're out of state... but they can't reject your notarization simply because the name the on the notary certificate doesn't match the name in the document, because our notarial certificate has NOTHING to do with the document itself, nor any of it's contents -- only the signature(s) on it.

Reply by VioCa on 8/26/10 2:50pm
Msg #350596

OK, I agree with you to some degree, so let's put it this way. John Doe is on the vesting, John Doe on the signature line and John Jack Doe is on the notary certificate. What proof does the county recorder has that it is the same person. They do not see ID's. I was talking only about the recorded document and for all other documents it is the lender's call. If it is OK with the lender to have it done that way, no problem.

Reply by Marian_in_CA on 8/26/10 3:09pm
Msg #350597

Again, doesn't matter what's pre-printed on the vesting or the signature line... what matters is the actual person signing.

The individual signing the document is claiming to have the authority to sign it.

As a notary, we cannot determine that. If somebody comes to me and says they have power of attorney to sign something, then that's what they claim. I can't ask to see it... all I can do is determine the identity of the individual in front of me.

If the county determines that the person signing didn't have the authority to sign, that's up to them... it has nothing to do with the notary... except that the notary *will* have the ID and thumbprint of the person who lied about it -- perfect evidence of fraud. We can't be held liable for somebody else's fraudulent actions unless we have actual knowledge of it. Our handbook is very clear that we are not concerned with the contents of the document except to verify that it is complete and to record the nature of it in our journal.

If John Jack Doe told me he was John Doe and has authority to sign the paper... then so be it. I don't give a rat's behind, because I'm not identifying "John Doe", I'm identifying "John Jack Doe".

And, in the case of a DOT, that's done with an acknowledgment... which as the wording goes... the person acknowledges that they are executing it in their authorized capacity.

Having a signature notarized has ZERO effect on the legality of a document. If it were an illegal signature before notarization, it still will be afterward.

Reply by Marian_in_CA on 8/26/10 3:27pm
Msg #350599

Forget to add that this is a VERY common mistake that a lot of notaries make. They make the assumption the name of the person signing needs to match a name in the document. While on a practical level that kind of seems obvious... it's NONE of our business (in California).

We are required to notarize a signature unless we have a very good legal excuse not to -- and telling them that their name doesn't match isn't one of those excuses. Because to do so is to determine capacity, which is absolutely forbidden under California law.

The notarial certificate has nothing to do with the document itself --- just the signature and identity of the person appearing before you. The notary has no way of knowing, nor any responsibility to determine if the person signing is a person named in the document or has the authority to sign it. That's making a legal judgment, and is a big no-no.

Reply by ReneeK_MI on 8/26/10 7:33pm
Msg #350614

Are you sure?

Your civil code 1185 states "is the individual who is described in and who executed the instrument".

Reply by LKT/CA on 8/26/10 7:37pm
Msg #350615

Disagree again

<<<Forget to add that this is a VERY common mistake that a lot of notaries make.>>>

It is not a mistake, myth or assumption. I believe civil code 1185 (i) is quite clear. Notaries or CWs cannot be named in the document, nor can they have a financial interest - to that degree - we ARE responsible for the CONTENTS of the document. Being responsible for the contents of the documents (in the spirit of the law) refers to it's correctness.

As far as capacity (authority/ability) goes - we ARE responsible to ensure that the signer can PHYSICALLY and MENTALLY sign the document. We ask the family of hospital or elderly patients all the time, " Is the patient on medication that would affect their awareness/understanding and thus their ABILITY to sign the document? Can they PHYSICALLY sign the document or will we need to have him/her make an X (signature by mark) and have two witnesses present?"

We ask (or determine by observation) if the signer understands - has a basic idea that they are signing a <__________> and what that *basically* is.

Marian, I seriously doubt if a person expressed to you verbally that they are just signing this because so-and-so told them to, and they don't understand the paperwork, that you would say "Well, not my concern, your ID checks out and I just saw you sign so LEGALLY we're good to go"......come on!!

Anyone taking this position - it's NONE of the Notary's business regarding the contents of any document....and what does the Notary care if Jane Jones (ID'd and signs before the Notary) is signing Rupert Randles' paperwork, which she is NOT named in and doesn't pertain to her - could backfire if the Notary is ever called into court over this and could (and someday will) end of biting them in the rear. It's up to the judge to interpret the law and they certainly can interpret it in it's SPIRIT (practical and customary).

***It doesn't do much to curtail fraud or fight elder abuse if nothing matters to the Notary beyond the signer's ID and seeing them sign the doc.***

Reply by Susan Fischer on 8/26/10 9:35pm
Msg #350624

I'm confused about 'capacity,' Marian. If X is signing as

AIF for Y, are you saying that in your block do you not write "....appeared be fore me...X, as AIF for Y..."? You only insert Y's name?

And did I understand correctly that you don't -ever- require seeing a POA, which, could be backed up by its own Notarization?

Reply by BrendaTx on 8/26/10 9:44pm
Msg #350626

Re: I'm confused about 'capacity,' Marian. If X is signing as

*And did I understand correctly that you don't -ever- require seeing a POA, which, could be backed up by its own Notarization?*

That is true for Texas.

Reply by Susan Fischer on 8/26/10 11:08pm
Msg #350639

Thanks, Brenda. Way different in Oregon, as is Capacity. n/m

Reply by Linda_H/FL on 8/27/10 12:05pm
Msg #350690

Yep..same in FL..don't need to see POA - but we DO

include capacity in our certs..based on reliance on statement by signer....

Reply by Marian_in_CA on 8/26/10 10:02pm
Msg #350631

Re: I'm confused about 'capacity,' Marian. If X is signing as

Susan... you're correct. In our notarial block we can only write the person's name... and NOT their capacity, including AIF.

And no, I never ask to see a POA document... because that would be making a legal determination about their capacity to sign, or the legitimacy of the POA document. That's outside of our duties, IMO. The only thing I'm allowed to determine is if the ID of the person is legitimate or not... since that's what the State has empowered us to do. A Power of Attorney Document is not a legal form of identification in California.

For example, CA Civil Code 1189(c) says, "On documents to be filed in another state or jurisdiction of the United States, a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary 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 SheilaSJCA on 8/27/10 12:14am
Msg #350645

yes, Susan you described it correclty n/m

Reply by Marian_in_CA on 8/26/10 10:39pm
Msg #350634

Ability and authority aren't the same thing, though...

Ability to sign or the cognitive ability to understand and relay the nature of a document have nothing to do with the authority to sign it.

When they refer to their capacity to sign, they mean"representative capacity" (see pg 42 of the handbook) -- not physical capacity.

If Jane Doe had a document with John Doe's name on it...of COURSE I would bring it up. I'm not that stupid... I would say, "This document appears to be meatn for John Doe to sign..." If she said, "Well, I have power of attorney and am authorized to sign it...." what amm I supposed to do? Deny her? What if she really DOES have POA and I deny her right to have her signature notarized.... then I would be in trouble.

You DARN WELL BET that I would notate the heck out of the situation in my journal, too... again, not that stupid! I would record everything I possibly could about the situation, including a make/model of a car if I saw it.

If she lies about her capacity, that's her problem... and my notarization of her signature has ZERO impact on the legality of the document. If she lacked the authority to sign before the notarization, then she still lacks it after and it's not a legal document. All I've done is verify her identity, likely gotten her thumbprint and we're good to go.

What kind of idiot criminal would actually have their signature notarized anyway? Especially on a document like a DOT that requires a thumbprint? I mean, that just screams, "I'm guilty!!!"

It's always an issue of common sense...

But back to the original post... I still think that the notarial certificate needs to match the signature/ID presented, and not any name that may be printed in the document. Now, we all know that the vast majority of the time these all match up just fine anyway. But I still maintain that I'm identifying the person in front of me, not a name printed on the document.

Reply by JanetK_CA on 8/26/10 3:43pm
Msg #350600

Please read msg # 349944; gotta run.... n/m

Reply by Marian_in_CA on 8/26/10 4:19pm
Msg #350601

Re: Please read msg # 349944; gotta run....

Janet makes a good point in that msg -- although in that case, it's referring specifically to credible witnesses.

I *DO* think it's something that we should have better clarified for us... because, on the whole, it makes NO sense for anyone to have their signature notarized on a document if they aren't the one named in it. I totally agree with that... but then, I think, "Hey if this idiot is going to have his signature notarized on a document he's not authorized to sign... he's just incriminating himself!"

It does appear that the handbook and the civil code contradict each other... actually, the Civil code contradicts itself....

And I fully take back what I said earlier... Janet is right... per Civil Code 1185:

"§ 1185. Acknowledgments; requisites
(a) The acknowledgment of an instrument shall not be taken unless the officer taking it has
satisfactory evidence that the person making the acknowledgment is the individual who is
described in and who executed the instrument."

But, then... how do we know that John Doe and John Jack Doe aren't the same person? If the document says John Doe, and the ID says John Jack Doe... the requirements of 1185 are essentially fulfilled.

And yet, we're still told that we're not responsible for the contents of the document, nor can we determine the capacity of the person to sign the document.

And if 1185 were to stand as is -- then how do we reconcile somebody claiming to sign as Power of Attorney, since that individual is not the one "described in" the document? Wouldn't we then be, technically, violating, CC 1185?

I'm glad Janet and Lisa challenge me on this --- I think all of us are actually right, because we can all pull code and handbook language to support our argument.

If that's the case, then it's something that we should probably bring to the attention of somebody with some power to get it clarified.

Because to me, if we are to match the signer to the person named in the document, we're determining their capacity, which we all know we can't do -- and yet, as Janet points out... that's kind of what we're supposed to do!

Reply by DRamey/SoCal on 8/26/10 4:42pm
Msg #350602

Re: Please read msg # 349944; gotta run....

I guess the same could be said if the document listed him as John J. Doe.....how do we know that the "J." is for "Jack" instead of "Jonathan"......I know, John Jonathan Doe would be silly, but I think you know what I mean. If they want it that specific, then the author of the document should spell it out. What to do?????

Reply by ReneeK_MI on 8/26/10 7:40pm
Msg #350616

Re: Please read msg # 349944; gotta run....

Now THIS is a quandry ...

"And if 1185 were to stand as is -- then how do we reconcile somebody claiming to sign as Power of Attorney, since that individual is not the one "described in" the document? Wouldn't we then be, technically, violating, CC 1185?"

Interesting twist, Marian. The AIF isn't named in the document he's signing AS an AIF on, but the principal is - the AIF is effectively acting AS the principle. Do you think ...IF the signature line was PRE-PRINTED with the standard AIF verbiage, that would take care of the "described in" issue? Of course, most of the time these lines aren't pre-prepared ...but I'm just trying to think as if I actually went to law school even though I most ASSUREDLY did not! =)

Reply by Marian_in_CA on 8/26/10 10:17pm
Msg #350633

Re: Please read msg # 349944; gotta run....

That works for me... if the AIF's name were listed with the standard verbiage... then in that situation, it does technically fulfill the 1185 requirements.

But as you said, most of the time, it doesn't do that.

But if I were a stickler for 1185 and a person who claimed to me to be the AIF and had that authority to sign... but I denied the notarization based on the language in 1185... I'd think I'd be in trouble for denying a lawful request for notarization of a signature.

Why? Because California ack workding is so very specific to cover the notary in these situations...

"On __________ before me, (here insert name and title of the officer), 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."


Now, I know people disagree with me here... but "subscribed" means "signed" -- and it refers to the actual signature that is applied or affixed to the document. And, as noted in the wording, the signer is the one claiming that they hold the authorized capacity to sign their name. The notary is simply attesting that the person made the claim... not that they actually have the capacity.

But as I noted above... 1185 *does* say what it does... it's just in direct contradiction to other codes and notes in the handbook.

Example, page 18 of our handbook, "A notary public can notarize a signature on a document in a foreign language with which the notary public is not familiar, since a notary public’s function only relates to the signature and not the contents of the document."

And as I mentioned before... Civil Code 1189(c) states that we cannot "...determine or
certify that the signer holds a particular representative capacity or to make other determinations
and certifications not allowed by California law."

So seriously... we have items that contradict each other in the realm that the signer be the one "described in" the document... and yet we're told we cannot determine that the signer actually holds a certain capacity to sign...nor are we responsible for the contents of a document.

Reply by Susan Fischer on 8/26/10 11:20pm
Msg #350642

"So seriously... we have items that contradict each other in

the realm that the signer be the one "described in" the document... and yet we're told we cannot determine that the signer actually holds a certain capacity to sign...nor are we responsible for the contents of a document."

No kidding. It's enough to drive a Saint crazy, as my mother used to say.

Reply by LKT/CA on 8/26/10 11:41pm
Msg #350644

Re: Please read msg # 349944; gotta run....

<<<If Jane Doe had a document with John Doe's name on it...of COURSE I would bring it up. I'm not that stupid... I would say, "This document appears to be meatn for John Doe to sign..." If she said, "Well, I have power of attorney and am authorized to sign it...." what amm I supposed to do? Deny her? What if she really DOES have POA and I deny her right to have her signature notarized.... then I would be in trouble.>>>

I agree with you Marian regarding the POA, that if a person says they have one on behalf of someone, we have to take them at their word, and like you, I'd make a note of it in my journal.

But realistically speaking, who has their signature notarized on documents they're not named in or that don't pertain them in any way? In my experience and *at ten bucks a throw* in CA, the folks that call me have their signature notarized because they HAVE to. In nearly 3 years, I have yet to meet anyone who has their signature notarized on paperwork belonging to someone else.

The premise of "it matters not who signs a document" does not follow the SPIRIT of the law or the spirit of our duties, which is to curtail fraud to the BEST of our ability.

I do 3 times the general notary work than loan signings and Jane Jones signing paperwork she is not named in or that doesn't pertain to her just doesn't happen. If you've had a different experience, please share.

I also submit (no pun intended) that the word "submit" in the ***context*** of the acknowledgment does not mean "signed", but included or written - to the WITHIN instrument. A person does not place their signature "WITHIN" an instrument, but at the END. The word for "signed" in the ***context*** of the acknowledgment is "executed".

Reply by Marian_in_CA on 8/27/10 12:23am
Msg #350647

Re: Please read msg # 349944; gotta run....

"But realistically speaking, who has their signature notarized on documents they're not named in or that don't pertain them in any way? "

Well, exactly... I think it's all more theoretical than practical here. It sure would take a daring (and stupid) criminal to actually go to a notary and claim they have the authority to sign something that they don't. If somebody says they have the authority to sign, such as a POA... I would just take them at their word and note everything. Even though, that is technically a violation of 1185.... and only technically... because the signer is likely not "described in" the document.

All the same, we can't deny somebody the legal right to have their signatures notarized. I mean, if the document is in another language, how are we supposed to know who, exactly, is named in it? Especially if the language is one that uses symbols and characters that are less familiar to us?

I had this happen recently. Had a document presented to me written in Russian. The signer was Russian, and had a Russian passport. I couldn't read the document to save my life, but his ID and signature matched and it did appear to be a legal document, and it was going to be sent to the SOS for an apostille. He told me it was a power of attorney document that he was sending to his father in Moscow. I took his word for it, and did as we're instructed in the handbook, to note that it was a "document in a foreign language" and then noted everything else.

As the handbook says, "A notary public can notarize a signature on a document in a foreign language with which
the notary public is not familiar, since a notary public’s function only relates to the signature
and not the contents of the document. The notary public should be able to identify the type
of document being notarized for entry in the notary public’s journal. If unable to identify the
type of document, the notary public must make an entry to that effect in the journal (e.g., “a
document in a foreign language”).


All of that is also a technical violation of 1185... again... technical.

But I like talking about the weird stuff in our laws because it helps us all see them better. At least that's how I see it.

Like you said, we can only so our best with what we're given. And given what we have now... I'm usually confident in how I do things, as I'm sure everyone here is. If I'm ever unsure, my biggest rule is to document everything just in case!

Reply by ReneeK_MI on 8/27/10 6:10am
Msg #350653

definition of subscribed ...

(I do love a good debate - and with Lisa & Marian I need to be on my toes!) =)

I contend that "subscribed to within the document", when pulled apart, means exactly what it says. The word "subscribed" is defined as "signed", plain and simple.

http://www.merriam-webster.com/dictionary/subscribed <--what the law uses

I also contend that, when reading a law pertaining specifically to a notarial act, they are differentiating between 'the document' and 'all things notarial'. So, "within the document" is differentiating between the document being notarized, and the notarial cert; not specifically meaning inside the body of the document.

It does change the whole intent of the law - subscribed to (signed) within the document (the stuff that's being signed, as opposed to the notarial cert). This does line up with the language of the laws that tell us the 'body' of the document is not our concern.

Reply by LKT/CA on 8/27/10 11:49pm
Msg #350782

Plain and simple...not really!!

I agree that ONE of the definitions of "subscribed" means signed.....I just don't believe it means it in the acknowledgment. ONE of the definitions for "executed" means "killed".....it does not mean that in the acknowledgment.

It makes no sense to use two different words with the same definition. Throughout the acknowledgment "executed" means signed. I believe the original INTENT of the word subscribed is not signed - as in "signed to the within instrument"........doesn't make sense. No one signs "within" an instrument.

Great discussion on this issue. I suppose we'll agree to disagree ;-)