Posted by JanetK_CA on 6/10/10 3:55am
Msg #340411

Another Affidavit headache - for CA notaries

This post is part vent and part "What would you do?" - primarily for the CA notaries, who will be most likely to get why this bugs me.

I have a *lender* doc that is one of those affidavits that starts out "Before me..." Usually they will then say "the undersigned notary public", which is a nuisance, but this one actually says "Before me _______, a notary public in and for________ personally appeared__ (borrower's name typed in)__". So they clearly want me to fill in my name (and state and county) at the very beginning of, and in the body of, a document that I'm to notarize. (It's a jurat, BTW, with wording at the end which I'll need to replace.)

I understand that this wouldn't be a problem in other states (probably Florida?), but this just doesn't feel at all right to me. I'll check with my client (a ss) in the am, of course, but I suspect they'll want me to just to fill it in and get it notarized. ["Just get it signed..."] Frankly, I don't think this document even belongs in this package since it refers to both a buyer and seller (and is to be signed by both) and this package is a refi. We shall see.

I guess in my mind this type of verbiage belongs in the notary certificate, which should be a completely separate entity from the document itself. When they start getting language intermingled like this, to me it's like nails on a blackboard - for those of you who are old enough to know what that is...

OK, end of vent. I'm shutting down for the night.

Reply by PAW on 6/10/10 8:18am
Msg #340415

We get a lot of affidavits that start off like that. It's the way many were taught in law school and in their practice. There really is nothing wrong with it. Just fill in your information and let it go at that. Your jurat needs to comply with CA code, obviously, and is not a problem to append the correct wording per code.

As for the document referencing both sellers and buyers, when the transaction is a refinance (same borrowers, same owners), the borrower is considered to be the "buyer" and there would not be a "seller". HUD-1 (settlement statement) accounts for "transactions without sellers" with an abbreviate statement, i.e. HUD-1a.

Reply by Michelle/AL on 6/10/10 8:31am
Msg #340417

Janet, thank you for posting this. I always learn something new from CA notary posts. You guys have so much to take into consideration. Not sure I'd want to do this work in Cali.

PAW, you just answered a question I had never asked. For the life of me I couldn't figure out if the borrower should be considered seller or buyer. In my mind the the borrower was fulfilling both roles. Thank you.

Reply by janCA on 6/10/10 10:10am
Msg #340431

Hi Janet,

Here's my take on this, which is two-fold: either they want both an acknowledgment and jurat, in which case I would attach both to comply with CA wording, and record in my journal, or if there is a jurat certificate at the end of the document I would attach that to comply with CA wording since we cannot help prepare the document or be named in the document. Of course, as you know, the best thing to do is call the hiring entity and ask them what they really want. Yes, this is always a pain.

Reply by JanetK_CA on 6/10/10 1:41pm
Msg #340450

"...since we cannot help prepare the document or be named in the document"

You got it, Jan! (That's why I addressed this to CA notaries... ) Plus, we can't notarize an incomplete document. So we're faced with a catch 22. We can't leave it blank, we shouldn't be editing the body of the document, and we shouldn't be named in it. (And I was right that the client just wants it done. So I may just have the borrower write in the correct information.)

It's just one of those things where we get caught between differences in state laws. I don't think it's that either state's way is better or worse than the other. But when the documents are created with one state's set of rules and applied in the other state, it can be like trying to fit a square peg in a round hole.

There's also an affidavit to be notarized that has two lines for witness signatures, but no line for the borrower to sign. Don't you love it?! We'll have to fix that one, too.

Reply by cadmonkey/CA on 6/10/10 7:56pm
Msg #340474

".....Here's my take on this, which is two-fold: either they want both an acknowledgment and jurat, in which case I would attach both to comply with CA wording"

This is what I usually do as well , just attach a loose ack and loose jurat and forget about it...(Haven't had one kicked back yet). But I do wonder if it's legal to have both an ack and a jurat on one document. Since they are two completely different acts, I would believe you could only apply one act to one document?!

Reply by aurelio/FL on 6/11/10 8:06am
Msg #340532

The certificate the OP mentioned was not an ack... it was the introduction to the affidavit ("Before me, the undersigned notary" blah blah). That is just part of the jurat but I guess in CA they have to use the specific jurat so the opening wording is not allowed.

Reply by JanetK_CA on 6/11/10 3:39pm
Msg #340591

I'm not aware of any prohibition in CA on having both notarial acts performed. As you said, there are differences. Depending on the document, I suppose there could be circumstances where it makes sense, but it seems to me to be overkill or laziness. That's not my expertise or concern, however, and if that's what they want, that's what they get. BTW, I used my jurat stamp (there was plenty of room) and just attached one loose acknowledgment.

My annoyance was the co-mingling of the notarial verbiage into the body of the document, when we have such specific requirements. Normally, we can separate ourselves completely from the document content, but not if it requires our name and state/county of operation to be filled in.

Further, if the notary verbiage is incorrect for our state, it's usually a simple matter of striking it out and replacing it. But when it's part of the content, if we do that, we are tampering with the document itself, which we are not supposed to do. Catch 22...

Completing the notarization was not the issue. For some reason, that particular document on that particular day, just got under my skin...