Posted by kathy/ca on 9/9/10 6:37pm
Msg #352100

There was a recent thread about ID'ing and signatures.

I am curious as to what the general consensus was. I have always instructed the signer to sign the name that is typed on the documents even if it was not exactly the the name on the ID (but a shorter version) because that is normally what is in the instructions. BUT, on the notary certificates I fill in the name that is on the ID. Is that the same format my fellow notaries use?

Reply by Marian_in_CA on 9/9/10 6:49pm
Msg #352102

For notarial certificates, I use the name on the ID... because that's the person in front of me. Unless I have specific instructions otherwise, I never direct a person how to sign a document. Their signature is their signature and I match it to their ID. For the most part, I simply don't care what name is pre-printed.

I think California law contradicts itself in this regard. By law, we're not allowed to determine or certify the capacity of the individual signing a document, nor are we responsible for the contents of a document except for verifying that it is complete prior to notarizing, and to record the nature of the document in our journals.

And yet, we're also told in Civil Code 1185, regarding acknowledgments:

"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."

So, really... it's a bit of a problem. The above code only applies to acknowledgments.

Page 18 of our handbook says, "...a notary public’s function only relates to the signature and not the contents of the document." The contents of a document included pre-printed names, as far as I'm concerned.

And Civil Code 1189 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."

That means that I need to be careful about how I ask about one's "right" to sign a document. Why? Because we're required to honor any legal request for a signature to be notarized. If we aren't allowed to "determine or certify" one's representative capacity, that means it we shouldn't be asking if a person if has the authority. So beyond that... if they have proper ID, we should notarize their signature.

In reality, it means we need to be careful in how we bring it up... I would NEVER ask, "Do you have the authority to sign for John Doe?" By doing so, I'm determining representative capacity. Big no-no. That's why this can be a potential problem... 1185 says one thing, 1189 says another.

The thing that really matters is this -- the notarial certificate doesn't have any impact on the legality of the document. If the person did not have authority to sign, yet claimed to, that's the problem of the signer... not the notary. If they signed it "wrong" that's an issue for the document recipient to manage, not the notary. (In general...sometimes there are instructions that superced this.) If it wasn't a legal document before notarization, it won't be after either.

Reply by kathy/ca on 9/9/10 7:08pm
Msg #352103

I would like to read that thread but cant find it, anyone

know the thread number? Not having any luck through "Search"! Thx !

Reply by Marian_in_CA on 9/9/10 7:19pm
Msg #352105

Re: I would like to read that thread but cant find it, anyone

Try Msg #350582

Reply by kathy/ca on 9/9/10 7:28pm
Msg #352107

I had just found it Marian, but thanks! n/m

Reply by kathy/ca on 9/9/10 7:38pm
Msg #352110

Many times the notary cert is preprinted with the name

that is also printed on the documents with instuctions to have the signer sign name as printed.

Reply by MW/VA on 9/9/10 8:39pm
Msg #352118

Yes, IMHO to decide how the name is signed on the docs is

UPL. Does CA law specifically say that you can only notarize the signature exactly as it is presented on the ID? That would be very restrictive, at best. My take on this is that we notarize signatures, not ID's.

Reply by JanetK_CA on 9/9/10 7:54pm
Msg #352112

I take a different view on this, but I agree that it could be clearer and is open to interpretation.

"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."

I've always taken the words "described in" to mean described by name. "...And who executed..." to me sounds like they should be one and the same person. As a result, I don't think capacity has anything to do with it. We either ID them as the same person or not.

And when it gets to the section about Credible Witnesses, it states that they must confirm under oath or affirmation that "(i) The person making the acknowledgment is the person named in the document."

I realize this is only spelled out this way in the section about CWs, but I have never interpreted this to only apply to just those situations. To me, it seems like a clarification of the intent regarding the previous statement - the very first thing listed under the section on acknowledgments - that says "the person making the acknowledgment is the individual who is described in and who executed the instrument."

Further, there's another section where the content of the document can become an issue for a California notary. I couldn't find it right now, but it has to do with notating in the journal the age of a person if the document we notarize states their age. And then there's these sections that don't get much attention, to muddy the waters even further:

"§ 1190. Certificate of acknowledgment as prima facie evidence; duly authorized
person
The certificate of acknowledgment of an instrument executed on behalf of an incorporated or
unincorporated entity by a duly authorized person in the form specified in Section 1189 shall
be prima facie evidence that the instrument is the duly authorized act of the entity named in the
instrument and shall be conclusive evidence thereof in favor of any good faith purchaser, lessee,
or encumbrancer. “Duly authorized person,” with respect to a domestic or foreign corporation,
includes the president, vice president, secretary, and assistant secretary of the corporation.

§ 1193. Certificate of acknowledgment; authentication
Officers taking and certifying acknowledgments or proof of instruments for record, must
authenticate their certificates by affixing thereto their signatures, followed by the names
of their offices; also, their seals of office, if by the laws of the State or country where the
acknowledgment or proof is taken, or by authority of which they are acting, they are required
to have official seals."

Gotta love it! And I gotta run, but I'll check back in later this evening...

Reply by Stoli on 9/10/10 12:37am
Msg #352138

Some lenders require the name be signed as it appears...

EXACTLY.
I agree with Marian that your signature is a very personal style, and no one can tell you what your signature should be...., BUT
I don't want to go back, for free. IF the instruction to "sign exactly as the name appears" is on the instruction page of the confirmation, I feel a little caught. For loans packages from Provident, I have asked borrowers to please "write" your name as it appears. I don't ask for their signature. If they will, teriffic! If they don't want to, I just move on. I try my best, but we all know the borrowers don't like it.

For the Signature/Name Affidavit, I acknowledge that it isn't their signature, and point out they are only "writing" the name the way it appears to confirm a name that may be reporting on their credit report or a name that they may have used before. By signing (writing) the name as it appears on the document is confirmation. Some will, some won't.

One escrow officer told me that it isn't up to us to tell the borrower what their signature should be, but let them know that the lender is the final word, and an incomplete signature may cause a redraw. That being said, put a post-it note on the docs indicating that the borrower was so instructed.

My favorite signature is one that I can't read at all! I ask the borrower if their middle initial is in the signature, and if they say yes, I'm good.

Reply by SANTA CLARITA MOBILE NOTARY on 9/9/10 10:58pm
Msg #352134

I just had a signer last night who refused to sign a Signature Affidavit contained in loan documents. As usual, the borrower signs the affidavit as they signed throughout the entire loan package, and then sometimes there are preprinted names (aka's) and they are to sign as their names are printed next to each name. This borrower refused to sign her name where her name was preprinted and it contained her middle initial (which by the way was on her ID). She said, "but that is not how I sign my name." So I didn't force her, but lenders, escrow/title always tells us to make sure they sign their name exactly as printed on the docs which often times poses a problem for many -- some people, especially borrowers on loan documents can be very difficult to deal with on this issue.

I always enter their full name contained on their ID in my notary journal and have them sign the journal the same way they sign the document(s).

I am a notary in California and this issue has always baffled me.

Reply by Marian_in_CA on 9/9/10 11:12pm
Msg #352135

See, this is an issue for me, too. I sign my name a specific way... that's my legal signature. Nobody is going to force me to sign a different way -- because that's not my signature. I don't care how they print my name... Forcing me to sign my entire name is just not my signature.

I once had somebody tell me that when I initialed something, I could only use my first and last initials. Baloney. My initials are MEH and I sign them in a very specific way.

As a CA notary, I can't tell anyone to sign a specific way... I tell them to use their legal signature and let them decide... unless I have specific instructions that I'm supposed to pass on... but the directive never some from me.

I want to see a signature that fundamentally matches the one on the ID and the person in front of me.

Reply by kathy/ca on 9/9/10 11:16pm
Msg #352136

I always enter the name in my journal as it is on the ID and

have them sign my journal with the same signature that is also on the ID. The notary block usually has the preprinted names that match the preprinted signature lines which show how they are to sign the documents. I think the question here is what name should go in the notary block if they differ, the name on the ID or the preprinted name on the documents. It seems there is a difference of opinion on this issue.

Reply by PAW on 9/10/10 7:08am
Msg #352145

You have proven that the person named in the document ...

... is the person who signs the document, no matter how it is signed. (Assuming that the notary followed proper protocol in identifying the signer.) Thus does it make a difference if the name in the certificate is exactly the same as the name on the documents? Some say yes, and some say no. I agree, there is a difference of opinion on this issue. But the underlying fact remains, the person signing the document is positively identified by the notary (per the laws, statutes and procedures of the state) as the person named in ("described in") the document and who signed ("subscribed") the document.

Reply by JanetK_CA on 9/10/10 3:38pm
Msg #352203

Thanks for weighing in, PAW

"But the underlying fact remains, the person signing the document is positively identified by the notary (per the laws, statutes and procedures of the state) as the person named in ("described in") the document and who signed ("subscribed") the document."

I think this is the critical point - and where there seems to be some disagreement. If we had no obligation to tie the person we are identifying to the document, we could have anyone signing a power of attorney, for example, for someone else instead of the principal, or signing QCDs, etc. They'd probably get caught eventually but it could result in tons more needless havoc in the interim.

While I agree that it's not our job to determine the validity of the document, I was taught that it IS our job to at least do our best to make sure that we are notarizing the right person's signature on the document we put our stamp on. I would think that most people - including those dealing with legal matters - expect that from a notary.

Seems to me that this issue is at the very heart of what it means to be a notary public - and if my thinking - as a California NP - is off-base on this, I'd sure as heck like to know! I'd appreciate others' thoughts on this.

Great series of threads, BTW. I think it's useful for us to challenge our assumptions from time to time. Hopefully we'll all end up better at what we do!

Reply by kathy/ca on 9/12/10 11:54am
Msg #352376

Seems there is no right or wrong answer on this issue,

some say they fill in the notary certificate with the preprinted name on the documents (which is usually also preprinted on the notary certificate), some say they fill in the name that is on the ID. Both ways may be correct but it would be nice is it was spelled out in the handbook.