Posted by AmyNotary/CA on 12/13/10 9:08pm
Msg #364929

What would you do?

It's a refi. The name in loan doc shows Mike Jones. ID shows Michael Jones. No AKA statement included in the loan docs. Borrower said he's been using the name Mike Jones for many accounts and for a long time. He wanted to keep it as is, but he was not able to provide me a ID showing Mike Jones. Both signig company and the lender were not available to give instruction. I had no choice but to cancel the appointment. I'm wondering if there are alternatives to have this done. What would you do? Thanks in advance for your input.

Reply by BrendaTx on 12/13/10 9:27pm
Msg #364932

You are the notary. You do not need the lender to tell you. n/m

Reply by MikeC/NY on 12/13/10 9:42pm
Msg #364933

CA rules are stricter than those in any other state so your hands may be tied, but Mike is a known diminutive of Michael (every piece of ID I have names me as Michael, but the only one who calls me that is my mother....).

Don't you have any leeway here, such as an AKA affidavit?

Reply by Linda_H/FL on 12/13/10 9:44pm
Msg #364934

A/K/A Statement wouldn't have helped her for notarial purposes...and she said there wasn't one there.

I think this signing should have been completed.

MHO

Reply by Claudine Osborne on 12/13/10 10:00pm
Msg #364936

I would have also have done this closing..

Reply by AmyNotary/CA on 12/13/10 10:12pm
Msg #364938

If you were to get this done, which name were you going to use on the notary certificate, Mike Jones or Michael Jones?

Reply by jba/fl on 12/13/10 10:14pm
Msg #364940

Jane Doe Jones.

Reply by Marian_in_CA on 12/13/10 11:12pm
Msg #364948

I always use the name on the ID in the notarial certificate, no matter what it states in the document, since *THAT* is the individual appearing before me.

If the ID says, "Michael James Smith" than that's what I write out in my journal and on the certificate. If the document notes a shorter or some variation of the name, then I will note that on the documents. Let's say the document says, "M.J Smith" --- great, but the guy before me is "Michael James Smith" -- I have no issue notarizing Micheal's signature on that, but I will put a little note in the journal that the document had "M.J. Smith" on it.

After all, even our own notarial commissions can be shortened version of our legal names, so long as our surname is intact.

I'm not sure why the issue of "what to put in on the certificate" comes up so much -- isn't it Notary 101 stuff? Maybe it's just me... but this was one of the first things I was taught.

Reply by aries/CA on 12/13/10 10:03pm
Msg #364937

The lenders usually do the application based on the name that's on their DL. I had one, his born name is Andrew and all the docs had Andy. His DL has Andrew, I spoke with the lender, and they told me that was fine. I didn't do an AKA nor was there one with the docs.

Reply by jba/fl on 12/13/10 10:13pm
Msg #364939

"The lenders usually do the application based on the name that's on their DL."

That is hogwash! If that were the case, there would be less ID problems than we consistently come across. This case alone proves that.

I would have done the signing....we have 5 Michaels in our family and only one goes by Michael. All the rest are shortened, nicknamed, or full names around the family gathering. Only confusing to those visiting.....we have it down pat (no, not a single Pat in our group!).

Reply by JanetK_CA on 12/14/10 4:04am
Msg #364957

I agree. I think it's more likely that the potential borrower calls the LO, the LO asks their name, and that's what gets put on the app. I only WISH they would check the IDs - or better yet, actually make an effort to find out how their name was shown on the last recorded vesting!

Reply by Isabel/CA on 12/13/10 10:20pm
Msg #364941

What about using credible witnesses? Might be a hassle to get them over there to present ID, take the oath and sign but it is an option.

Reply by AmyNotary/CA on 12/13/10 10:27pm
Msg #364944

Credible witness will be used when signer is not able to provide proper ID, right? He showed me his dirver license at the signing.

Reply by Marian_in_CA on 12/13/10 11:03pm
Msg #364947

Credible witnesses would not be appropriate in this case, since the person had valid ID. CWs are only used for when the person lacks ID and has no reasonable method of obtaining it. It isn't to be used for times when the name on an ID doesn't match a document.

As I noted below, I think too many notaries use a name printed in a document as a form of ID or in reinforcing ID. In CA, as our handbook states, "a notary public’s function only relates to the signature and not the contents of the document."

Reply by Isabel/CA on 12/14/10 3:41pm
Msg #365014

Yes, you are correct credible witnesses aren't exactly the best solution in this case, but as an option to HALTING the signing (last resort) I think they cover you. IMO, since this was such a minor discrepancy, the credible witnesses may have put you at ease and allowed you to complete your certificate confidently.

Our certificate states that based on "satisfactory evidence" you believe this is that person. The credible witnesses IN ADDITION to the ID provided is enough for me. I've done it instead of halting the signing in a situation very similar to this one, and felt comfortable with it.

But again, as a notary, you have to go with what YOU are comfortable with when there is room for interpretation.

Reply by Linda_H/FL on 12/14/10 3:56pm
Msg #365015

Isabel, you need to read your manual again

and listen to what Marian and other CA notaries have said - this scenario does NOT warranty credible witnesses.

Reply by Linda_H/FL on 12/14/10 3:59pm
Msg #365016

Blah...s/b "warrant" n/m

Reply by Isabel/CA on 12/14/10 6:28pm
Msg #365030

Re: Blah...s/b "warrant"

sigh....I HAVE read my manual. And recently in fact.

The oath that the credible witnesses have to take states that "the signer does not possess any of the identification documents authorized by law to establish the signer's identity."

The gentleman in question, Mike, did not have any ID to show that he was in fact Michael, correct?? She couldn't ID him as Michael. Therefore, the credible witnesses could work in this case.

Again, I'm not saying this is a perfect situation. I know what credible witnesses are intended for. What I'm saying is, that it would be a legitimate way to ID the signer when the discrepancy is so minor and the ONLY other alternative is to stop the signing.

Its a matter of your interpretation, that it woudn't work.

Reply by Linda_H/FL on 12/14/10 6:47pm
Msg #365032

I disagree Isabel

Your manual also states (as does Florida's) that the CW must swear under oath that "The credible witness reasonably believes that the circumstances of the signer are such that it would be very difficult or impossible for the signer to obtain another form of identification;"

http://www.sos.ca.gov/business/notary/forms/notary-handbook-2010.pdf Page 8

Take CW's right out of consideration in this scenario. This guy has current valid ID for CA in the name of Michael, and Mike is a common shortened version of this name. I don't see how CW's can even be considered here...

Again..I think this could have been completed (rather than risk the loan or the rate) with the ID at hand.

MHO

Reply by Isabel/CA on 12/14/10 6:55pm
Msg #365036

Re: I disagree Isabel

Linda, I totally agree with you on your point. It probably should have been completed given the situation.

But since the notary did not feel she could ID him, the CW could come into play instead of halting the signing. The portion of the oath that you cited would apply since he didn't have any other ID with the variation of the name.

But again, I agree that I would have completed the signing. Especially if his signature matched the DL.

Reply by kathy/ca on 12/14/10 7:48pm
Msg #365039

Linda, I think Isabel agrees that using CW's is inappropriat

in this case but she is just saying that to give the OP an additonal level of comfort since she wasnt totally comfortable accepting the ID alone as it is, this might be in additon to accepting the ID. Its kind of like asking for more proof like seeing a property tax bill or an electric bill with the name in question on it. At least thats what I think she is trying to convey through her posts. Correct me is I am wrong Isabel!

Reply by Isabel/CA on 12/14/10 10:40pm
Msg #365053

Re: Linda, I think Isabel agrees that using CW's is inappropriat

Bingo!

Reply by Marian_in_CA on 12/13/10 10:59pm
Msg #364946

"Mike" is a common shortened version of "Michael" and that, alone, is no reason to think this guy wasn't who he said he was.

I would have gone by his signature... if the signature he used on the docs matched the signature on his ID, then I'd be fine with it. But, in the notarial certificates, I'd use the name on the ID. You're notarizing the signature of the person in front of you.

I've said this before, but I never, ever instruct somebody to sign their name as written on the docs. One's legal signature is none of my business. Besides, how can one tell if a scribble is one thing or another?

From my own perspective, if somebody told me that I had to sign a document spelling out my entire full name, I would not consider it to be my legal signature, and I'd ignore them. My legal signature appears on my ID -- and it does not exactly match my name as it is spelled out on that ID -- and if people don't like that... tough. My legal signature is my legal signature.

Our handbook is very clear that we (as notaries) that "a notary public’s function only relates to the signature and not the contents of the document..." (page 18). That's why we're allowed to notarize signatures on documents in a foreign language.

Our job is to be reasonably certain that the signer is who they claim to be through presentation of state-mandated acceptable ID. I have no issue notarizing a signature of a person is the document says, "Mike Smith" and his ID says "Michael Smith" so long as the signature he uses on the document matches the one on his ID, and I'm convinced he is who he says he is.

It's my beleif that a lot of notaries make the mistake of assuming that the name printed on a document must match the ID, as if the document itself is some form of ID. It isn't.

Now, with regard to acknowledgments (and ONLY acknowledgments, see CA Civil Code 1185) we are told that we should have "satisfactory evidence that the person making the acknowledgment is the individual who is described in and who executed the instrument." Now, different notaries interpret this in different ways, but it does not state that the name on the document must exactly match the ID, but that there should not be "circumstances that would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be."

Note that they say "reasonable" there? Have you ever sat on a jury where they describe the concept of reasonable doubt? It doesn't mean absolute certainty -- it means that after considering evidence (or lack thereof) you are confident about a decision.

Given proper ID with a photo, description and signature that match, what reasonable person would say that "Mike Smith" as written on a document isn't "Michael Smith" as on his ID?

As long as you put that name the is written on the ID in your notarial certificate, you should be fine -- after all, you're notarizing the signature, not a preprinted name in the content of a document, for which, as a notary, state law says you are not responsible. We use our common sense, and common sense tells me that, absence evidence to the contrary, "Mike" and "Michael" are probably the same person.

For those asking about an AKA affidavit --- that's not something a CA notary can provide or even suggest. It should be supplied in loan packages if they feel it necessary.

Reply by Bravo on 12/13/10 11:27pm
Msg #364950

Someone made a comment earlier about the lender drawing documents according to what is on the borrower's driver's license. Since when? The docs should always be drawn according to how the borrower holds title to the property which is shown on the preliminary title report. Has this industry changed that fundamental proceedure? Its been awhile since I was an escrow officer but I find it hard to believe that that is no longer proper proceedure.

Reply by AmyNotary/CA on 12/13/10 11:30pm
Msg #364951

Thank you all for your inputs. Next time when I face the similar situation, I will handle this differently. It's been so much fun learning & sharing at this site. I love Rotary Notary family!
Thanks again.

Reply by HisHughness on 12/14/10 12:33am
Msg #364953

I don't know what this means

***My legal signature is my legal signature.***

What is a "legal signature?" Is it the one you use most of the time? The exemplar you give your bank? The one you put on your drivers license? Passport? Notary commission?

I don't know of any legal proceeding to declare a signature your legal signature. Thus, I construe a "legal signature" to be any signature written freehand and not done with the purpose to defraud, and which the signer designates as intended to identify himself. It can be printed (most Mexican nationals seem to print their names), it can even be a symbol, or it can change -- as from document to document.

Thus, if a hiring party -- lender, title company or signing service -- gives me instructions to have the signer follow the typewritten name, I'm going to instruct him to follow the typewritten name, even if he is reluctant. If he does that, it's going to be his signature, and it's going to be legal -- his "legal signature." If he refuses, I will acquiesce in his refusal, but will include a note with the documents to that effect.

The only exception to that procedure is when the party's signature is so illegible that a reader cannot ascertain what it includes, or does not include, in which case I tell him to scribble away. Not exercising any professional discretion, just pragmatism: If anybody ever challenges it, I'm going to ask them to tell me how they know something was included or left out.

Reply by ReneeK_MI on 12/14/10 10:03am
Msg #364970

conversational legal question, Hugh

First, I agree and have researched extensively the definitions of what constitutes a legal signature - if a person is holding the pen, and they intend to place their mark on the paper, whatever the mark is, it is their "signature".

As is often the case, the 'parallel' universes of law, lending, title & notaries are often out of allignment.

But I digress - you noted that you know of no legal proceeding to declare a signature as a person's legal signature. What of the various Civil laws outlining how to obtain proof of acknowledgment? The states all have their own versions, of course - but some require the witness to not only have known the grantor/signer, but to also be familiar with their signature and/or handwriting.

By 'forcing' a person to make their mark with a signature that deviates from their own usual signature, wouldn't that have the potential for dire consequences, should it ever need to be proven as their signature under such situations calling the 'proof by handwriting' into play?

Reply by HisHughness on 12/14/10 11:37am
Msg #364985

Re: conversational legal question, Hugh

***you noted that you know of no legal proceeding to declare a signature as a person's legal signature. What of the various Civil laws outlining how to obtain proof of acknowledgment?***

Those aren't proceedings to designate a "legal signature," analagous, say, to a proceeding to declare "This is the testator's will," as opposed to three others offered for consideration.

I just don't know of any document one files or any legal proceeding one employs that has the intent of designating a signature as one's legal signature. One may have a customary signature, but even that doesn't mean you are confined to signing solely in that fashion.

I can sign my name in an illegible scribble only once in my lifetime, but that's my signature, I signed it, and if it can be established that I signed it intending it to be my signature, then I am bound by it.

Reply by ReneeK_MI on 12/14/10 2:09pm
Msg #364997

the thought behind my question

It's a known fact of our times, borrowers will sometimes do ANYTHING to escape a mortgage (particularly, a mortgage foreclosure). Since the 'Proof of Acknowledgment' laws are written to outline the methodology to proving someone did sign something (if, for example, they deny that they signed it) - IF the 'mark' they put on there was NOT their usual mark, but instead an orchestrated rendition of their name ....wouldn't it present a bit of a headache trying to prove it was?

I don't debate the fact that all a person needs is a pen and the intent, for a signature/mark to be "legal" - I just wonder if it's so wise for lenders to be dictating those marks. Again, just purely conversational.

I'll take my answer off the air. =)

Reply by JanetK_CA on 12/14/10 4:01am
Msg #364956

"Now, different notaries interpret this in different ways, but it does not state that the name on the document must exactly match the ID, but that there should not be "circumstances that would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be."

We completely agree on this point. This issue has nothing to do with restrictive CA notary law and everything to do with how it's interpreted. I don't think I would have had any problem completing this signing, either. I might have asked to see something else with his name as on the document (i.e. Mike) - not as ID, but just as further corroboration for my own comfort level that this person does, on a regular basis, go by the abbreviated form of this name.

Reply by KTN on 12/14/10 3:18pm
Msg #365011

Interesting discussion. I'm in CA, and my name on my driver's license is Kathryn. Name on my notary commission is Kathy. If it's good enough for the secretary of state to use a shortened, accepted version of my name, I don't see why Mike would not be an acceptable version of Michael.

Reply by Stamper_WI on 12/14/10 7:56am
Msg #364960

Here is an odd one

I once had an AKA form with all the guy's AKA's typed in. One name was simply "Whitey", which was his nick name. Apparently he bought a boat from a guy in a bar. They drew up a simple purchase contract on the spot and the bartender and a patron signed as witness''s. Whitey didn't pay the guy and was taken to court and had a judgement against him as "Whitey AKA his real name"
He swore under oath he was that Whitey.

Reply by Lavergne Manuel on 12/14/10 8:44am
Msg #364961

Re: Here is an odd one

Did one last night, name on Id, Herman James Smith, Name on Title Docs, Herman J. Smith, Name on Deed and all other docs, Herman Smith. Name on docs less but not more than on ID. Happens all the time.

Reply by Stamper_WI on 12/14/10 8:50am
Msg #364962

It's the Jr's 1,2,3's

Where you get the most angst from the signers. Often #2 seems to be the one that goes by their middle name
eg John Joe Doe I, Joe John Doe, John Joe Doe III

Reply by MW/VA on 12/14/10 10:13am
Msg #364975

I would have completed the signing. IMO it would be obvious

that Mike Jones & Michael Jones were the same person. Too bad CA notary laws are so ridiculous that you don't have any freedom to try act as a notary. Most states say that the notary has to be satisfied with the ID presented as proving the person says they are who they claim to be. Yeessssh!!

Reply by JanetK_CA on 12/14/10 7:45pm
Msg #365038

Don't believe everything you read here!

Do you have a thing about California notary law? Because I seem to recall you making some similar reference, at least once before. As I posted above, there is nothing (as in not a single word) in CA notary law that addresses a situation like this. It simply states what ID is considered acceptable minus "evidence to the contrary", etc. There is absolutely no reference I can think of regarding how one is supposed to interpret any difference in name between a document and an ID. (I'd very much like for someone to enlighten me if I'm missing something.)

It's just how people choose to interpret it -- or how their instructors choose to interpret it -- or, most likely, how they choose to interpret what their instructors say, that creates all these issues. It's just a myth that keeps getting repeated over and over - sometimes by the same individuals. Ahem....

Reply by ReneeK_MI on 12/14/10 10:23am
Msg #364977

What I would do is what I did ...

...when I first realized the statutes left too much to the imagination for me. As is pretty known, I am prone to by-passing most conversation and going straight to the authoritative source. When it comes to interpreting our own notarial statutes - while it might be fun to brain-storm and chat about, there is only one authoritative source.

I wrote my own SOS, and ASKED THEM for a written directive/interpretation. I don't even bother calling on the phone, the answers are just too easy to deny having given them. I wanted it nailed down, in writing. It took 5 months of constant follow-through & poking with sharp sticks, but I did finally receive their written "informational".

It is very thorough & concise, it taught me a lot, and I now don't need to debate these issues for my own state - and though it took time, but didn't cost a dime.

Again - "Less but not more" is a notarial Urban Legend. If I believe "Mike" IS "Michael", I have no problem putting "Mike" in my cert. If Mary Smith hands me a D/L that says Mary Jones, but I believe the photo/description/signature to BE Mary Smith, and she can dig up evidence to satisfy me (marriage license, SS card all tying Smith to Jones), I'm good & I'm also 100% in line with my statutes. If I'm good with her being Mary Smith, my cert will state so.

The key to all this (in MI, but same wording as many other states) - one word: BASIS. The statute says "...on the basis of (gov't issued ID)" It doesn't say "...BY their (gov't issued ID). That is intentional, and very crucial to the way the rest of the statute is interpreted. Basis - the principle component, upon which complete satisfactory evidence can be built with additional information/documentation.

Since CA has so many notaries, and many of them post here - and some of them our brightest colleagues, I don't mind adding - and since the whole CA ID debate crops up here regularly, hasn't anyone of you guys written YOUR authoritative source to get it nailed down once & for all?

Reply by MrEd_Ca on 12/14/10 11:17am
Msg #364984

Re: What I would do is what I did ...

I did write the SOS here in California about a similar situation & the reply I received was the following -- "Although not stated in the law, the "rule of thumb" is that the id should show more that the document" . (I took that to mean 'the ID should be equal to or more than that stated on the document ') The quote was copied from an email I recieved on 7/18/06 when I asked them about the suffix Jr. / Sr. --- which is a whole other can of worms.

I post this here to show, mostly, that the ''less not more' concept is not merely an Urban Legend. I wrote again in Jan. 2009, about a similar situation &, while I did not keep that email, I did write & keep a note to the effect that the reply stated 'a notary cannot add name elements to the ID", name elements being a middle initial or letter to a name, ect. --- which was the point of the reply.

This is in California & how I handle this sort of thing. I don't know about other states.

Reply by GWest on 12/14/10 12:44pm
Msg #364990

Re: What I would do is what I did ...

I sent an email to the CA SOS regarding the use of nicknames and this is their reponse:

The law states that "satisfactory evidence" means the absence of any information, evidence, or other circumstances that would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be. However, if you are not comfortable with the identification, you may refuse the notarization.

Reply by ReneeK_MI on 12/14/10 2:02pm
Msg #364996

Exasperating - answers from your SOS

the response Ed received and the one you received contradict each other. I'm happy to see people asking their 'authority' to nail things down, and in writing.

Perhaps ....big perhaps ...just making a routine of bringing these questions to the state's respective authorities would encourage (out of sheer frustration on their part) greater 'real world' details in their directives.

Reply by MW/VA on 12/14/10 5:39pm
Msg #365023

Re: What I would do is what I did ...

IMO the key wording there is "reasonable person". I definitely don't think it's reasonable to refuse to abort a closing over "Mike/Michael". This is the kind of thing that makes it tough on the rest of us out here when tc's or ss think they need to babysit because we can't think.

Reply by CH2inCA on 12/14/10 1:10pm
Msg #364992

Re: What I would do is what I did ...

The rub is; that even if you're ok with notarizing that Mike document with a Michael id, which I'm comfy with that. Actually notarized a Jim document with a Jimmy id. Then wrote Jimmy on the certificate...

wouldn't record.

Acknowledgement and TD must have the same name.

Reply by ReneeK_MI on 12/14/10 1:56pm
Msg #364995

That's why I'm surprised to see a few saying

that they put the signer's name as it appears on their ID in their cert, as opposed to the name the signer signs as.

Even if this is done on a document that won't be recorded, isn't it a bit misleading? If "Mike Jones" needs to have his signature notarized, and the cert says the person was identified as "Michael Jones" (sworn statement from "Michael" or signature acknowledged by "Michael"), it seems to imply that "Mike Jones" was NOT that person.

If I am satisfied that the person before me IS, indeed, Mike - regardless of how that identity is presented on his gov't issued ID, and regardless of what additional evidence was presented to me to satisfy identifying him, it is "Mike" that I put in my cert. (Perhaps this part of my initial post wasn't clear? Easy to see how confusing it could be!)

Reply by jba/fl on 12/14/10 2:18pm
Msg #365000

Re: That's why I'm surprised to see a few saying

I'm glad you said something about that - I have often wondered how ID is to be put on certificate, yet a different form of name is on docs. Just doesn't make sense to me at all.

Reply by PAW on 12/14/10 2:32pm
Msg #365004

Thankfully in FL we can use AKA wording in the certificate.

For example:

The foregoing instrument was acknowledged before me the 25th day of December, 2010 by Kris Kringle who represented to me that he is also known as Santa Claus, and who provided a passport in the name of Kris Kringle ...

Assuming the documents show "Santa Claus" but his passport shows "Kris Kringle".

(Source: Florida Governor's Reference Manual for Notaries, ed. 2001, pg 61)

The manual goes on to say, "You may always provide additional information in your certificate, especially if it helps to clarify the circumstances. You may also want to include information about supporting documentation concerning the name change or additional identification cards, if available, in your journal."

Reply by CH2inCA on 12/14/10 2:18pm
Msg #365001

Re: That's why I'm surprised to see a few saying

Well I had to go back and do it over. Wrote Jim on my cert.

And we'll see if I ever go to jail over it. ;0)

But I can say, if I should ever have to defend my decision; I was presented with 'Satisfactory evidence", meaning there was no "evidence, or other circumstances which would lead a reasonable person to believe that the individual is not the individual" he claimed to be.