Posted by LKT/CA on 6/30/10 9:22pm
Msg #343338

In Reference to threads 342982 & 343276

I read these two threads regarding whether a misspelling of a name was important (even one letter off) and whether it matters who signs a document. Here's my perspective. Spelling matters because even one letter difference can mean two different people.

Kim Anderson vs Kim Andersen - (I have notarized for an Andersen)
Bob Johnson vs. Bob Johnston
Lillie Adams vs. Lillie Addams

The other issue is whether paperwork has John Jones, yet Jane Thompson is signing. It was said that it doesn't matter if Jane Thompson signs her name on John's paperwork so long as Jane proves her identity and the Notary watches Jane sign.

*****It is against the CA notarial law to notarize a signature for a person not named in the document or for whom the paperwork is not intended. The certificate of acknowledgment clearly states this. No one can take an oath (jurat) regarding the contents of paperwork not intended for them. *****

The CA acknowledgment reads in part (I'm going to capitalize for emphasis only, not to shout) "......who proved to me on the basis of satisfactory evidence to be the person WHOSE NAME IS SUBSCRIBED TO THE WITHIN INSTRUMENT and acknowledged to me that he/she/they executed the same IN HIS/HER/THEIR AUTHORIZED CAPACITY......"

If Jane Thompson is not named in the document and not the INTENDED signer, she has no authority to sign the document (i.e. executed (signed) in his/her/their authorized capacity, meaning Jane is supposed to have the authority to sign). The law looks at INTENT. A person cannot have their signature notarized on a document that is not intended for them. Even if no names were printed on the paperwork, the document is meant to be signed only by the person(s) it is intended for.

There's no way whatsoever I'd put my signature and seal on any acknowledgment or jurat, having notarized a signature for someone not SUBSCRIBED TO THE WITHIN INSTRUMENT, or for which the document was not intended. Jane Thompson cannot take an oath for contents not meant for her.

Be careful not to have a cavalier attitude about these things because it only takes ONE time for something to happen that may make you wish you never got a commission. Some may say, there's no likelihood that Bob Johnson stole Bob Johnston's identity and is now signing away Bob Johnston's life. Again, it only takes ONE instrumental incident for you to lose your commission (and possibly your shirt).

Anyone wishing to have their signature notarized on paperwork where their name is not subscribed in or where they have not executed it in their authorized capacity is up to no good.

Another thing Notaries should be careful about - taking that attitude of "I didn't know, so I'm not responsible". If you take that attitude, then don't get a real estate license because in real estate (to a certain degree and in certain instances) you are EXPECTED to know - could know and should know and if you don't, you are held accountable ANYWAY.

Some agents would deliberately and purposely refuse, run from or turn a deaf ear to information so they could use the excuse that they didn't know and therefore are not responsible for the results of not knowing. It's like when you were a kid and there was something you didn't want to hear so ON PURPOSE you'd stick fingers in both ears and yell LA LA LA LA LA NAH NAH NAH. In real estate, you cannot do that, you cannot avoid info so you can feign ignorance and say you're not responsible because you didn't know....doesn't work and ***I submit to you that as a public officer of the state, a Notary Public cannot do that either.***

Reply by Marian_in_CA on 6/30/10 10:00pm
Msg #343343

Lisa said, "*****It is against the CA notarial law to notarize a signature for a person not named in the document or for whom the paperwork is not intended. The certificate of acknowledgment clearly states this. No one can take an oath (jurat) regarding the contents of paperwork not intended for them. *****"

I totally disagree... well... not totally. But I'll get to that.

First, is the definition of "Subscribed" -- "subscribed" does not mean the pre-printed name or any content of the document... it means the signature itself. "To subscribe" means "to sign".

So, with the CA Acknowledgment, let's look at that:

"......who proved to me on the basis of satisfactory evidence to be the person WHOSE NAME IS [SIGNED] TO THE WITHIN INSTRUMENT and acknowledged to me that he/she/they executed the same IN HIS/HER/THEIR AUTHORIZED CAPACITY......"


Read that carefully... in our cert, we're saying that the person who SIGNED the document is who they say they are (the signer) and that THEY claim they have the authority or capacity to do so.

We are NOT allowed to determine the capacity/authority of a signer. It's not our job. So if Jane Doe says she has the authority to sign for John Doe... that's HER problem, not ours. All we're doing is determining the identity of the individual signing. To tell someone they don't have the authority to sign a document is outside of our job description and could get us in to trouble.

That's why when I fill out a certificate, I write the full name of the person signing as it is on their ID, not in the document. I'm not determining the ID of the person in the document, but the subscriber, the signer.

Now, obviously... common sense comes in to play. If I see a doc with the name of John Doe and it's Jane Doe signing, I'm going to inquire. If she says, "I have POA" -- well, that's HER claiming her capacity to sign. Who am I to tell her she can't do it? I can't tell her that... because determining capacity.

Now, let's take jurats.

Let's say that I'm asked to swear/affirm information about my husband's identity. The form lists his vital information, which I know to be true. I sign it and swear to the contents.

Where's the problem in that?

As a notary, you're not telling anyone that the contents are true or that you trust the person signing... you're just saying that the person swore/affirmed the contents before you. That's it! Again, it's not our job to determine if the contents are actually true or not.

As I said before -- the only way I would balk in this regard would be is I KNEW, for a fact that the person was lying. That's state law... we can't certify anything we know to be false. But again, our certs aren't certifying capacity... just the the person signing is who they say they are, that they personally appeared and THEY claim to have the capacity to sign.


In other states it may be different, but in CA... my points are:

1. We're not responsible for any of the content of the document.

(Handbook, page 18, "a notary public’s function only relates to the signature and not the contents of the document."



2. We are not allowed to determine the capacity of the signer.

(Civil Code 1189, Handbook page 11, "A notary public may complete a certificate of acknowledgment ... 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.")



Therefore... I still stand by what I've said. Obviously, we need to use common sense and ask questions... but in the end, we can't refuse a lawful request to notarize a signature --- no matter what the document may be or how crazy it sounds to us. That's why our certificate wording is so specific and strict.

Reply by Marian_in_CA on 6/30/10 10:04pm
Msg #343344

Also...

That's why if there's any doubt... we make extensive notes in our journals. There have been a few times where I took up an entire page in my journal writing out notes for a specific situation.

Reply by bagger on 7/1/10 10:38am
Msg #343390

Re: Also...

Sheesh
Just have the signer crossout the incorrect spelling, print the correct spelling and then initial.
And what are the docs they sign that give the right to the title and lender to make corrections due to typographical errors for?

Reply by Marian_in_CA on 7/1/10 11:18am
Msg #343394

Re: Also...

It's not always about loan docs, though... this is more theoretical regarding all notary work.

Reply by LKT/CA on 7/1/10 1:12am
Msg #343355

Okay, I disagree again.

*Signed* is one of several definitions of the word *subscribed*. I submit that the word *executed* within the acknowledgment certificate refers to signed while *subscribe* refers to one of its other definitions - to consent, or pledge.

A lawful request to notarize a signature is more than just ID'ing the signer and watching them sign.

We're not responsible for the content of the document with the exception that if we know the statements to be false, we are not to notarize the person's signature. So in a sort of sense, we are responsible to curtail fraud by not notarizing signatures on documents with lies and other blatant falsities - that signifies that content does matter, at times, even if only in a narrow sense. Content also matters when it comes to notarizing a signature and we have a beneficial interest in or are named in the document.

Regarding spouses - yes you can swear to info "about" your husband - but that's not what I'm talking about.....I don't see how you can take an oath for your husbands *actions*. People can only swear to their own actions...not others actions. I cannot swear my husband will or will not DO a particular thing. I can only believe and hope he will but HE must take an oath saying he will or will not DO thus and so.

Yes, if a person is signing as an AIF, they can sign on the other person's behalf and NO, we don't have to see it, we take customer's word for it, but that is not the essense of the prior thread. What I got from the other thread was that anyone can have their signature notarized to anyone else paperwork - regardless of whether that paperwork is intended for them because the paperwork is not our problem.

If I tried to sign my neighbors document, the receiving party will see his printed name and info pertaining only to him - intended for him - with my signature and ask him "Whose signature is THIS?" "Oh, my neighbor signed it and see.....her signature is notarized too." That won't fly!

I'm going to stand by what I wrote too because to me, a lawful request is not just ID'ing the signer and watching them sign. There is some responsibility to the document - not it's accuracy, spelling, typos, etc, but certainly the few things I mentioned above.

The entire point of notarizing signatures is to curtail fraud - ensuring that the person signing the document has been ID'd, signs in the notary's presence and that he/she is the one who's supposed to sign the document.

How can we help curtail fraud if we don't care who signs what paperwork?

Reply by Marian_in_CA on 7/1/10 2:15am
Msg #343358

"The entire point of notarizing signatures is to curtail fraud - ensuring that the person signing the document has been ID'd, signs in the notary's presence and that he/she is the one who's supposed to sign the document."

I think that's where we really disagree... at least the last part of that. Since when are we supposed to determine who is "supposed" to sign a document? I find that nowhere in our notarial law.

Again, the only thing I can point to is our handbook... which says we're only concerned with the signatures, not the content... and we're not allowed to determine capacity.

If you are trying to figure out if somebody is "supposed" to sign a document... you're determining their capacity, which is exactly what we're NOT supposed to do.

Does what I'm saying make sense?

"What I got from the other thread was that anyone can have their signature notarized to anyone else paperwork - regardless of whether that paperwork is intended for them because the paperwork is not our problem."

It's just a theoretical concept more than actual practice. Theoretically... yes, that's absolutely true. Because we are NOT concerned with the content of the document. Our seal has zero effect on the validity of a document, only the signature on the document. Whether the signature is "legal" or "proper" as is pertains to the content is not for us to decide -- that for receiving parties, lawyers and courts of law. The only exception to that rule is if we KNOW that when somebody is lying.

If you think about it, if Jane Does signs a contract for John Doe and she does not have the authority to do so... it's not a valid contract. It doesn't matter that her signature was notarized or not... it's simply not valid. In reality, if she did NOT have the authority to sign on his behalf, a notarized version of her signature on that contract is excellent evidence of fraud... not on the part of the notary, but the person who presented herself to have her signature notarized. So, the argument could easily be made that anybody actually doing that is really a big idiot, because the notary will have plenty of admissible evidence busting them.

Lisa, I'm totally willing to change my mind if you can show me where, in our CA law, we have any kind of obligation about the content of a document. Aside, of course, from the directive that we not notarize an incomplete document.

In the first message of this thread, you said, "It is against the CA notarial law to notarize a signature for a person not named in the document or for whom the paperwork is not intended."

Please tell me where that law is located... because I've never seen it.

Reply by Marian_in_CA on 7/1/10 11:44am
Msg #343397

I will add one thing here, though, that I wasn't thinking about and realized this morning.

When it some to using Credible Witnesses as ID, the witnesses themselves must swear "the individual appearing before the notary public as the signer of the document is the person named in the document." (Handbook, pg 8)

Now... that's the only other reference I can find... and in that case, it's still not the notary's job to make the determination... but for the witnesses... because with CWs, there is no ID/signature for comparison of the signer. So I think that this is one of those unique exceptions.

Reply by LKT/CA on 7/1/10 8:08pm
Msg #343476

<<<In the first message of this thread, you said, "It is against the CA notarial law to notarize a signature for a person not named in the document or for whom the paperwork is not intended." Please tell me where that law is located... because I've never seen it.>>>

Ok, I retract the statement that it's against the law......I do believe it to be true because of the acknowledgment wording, I just take back the statement.