Posted by RE/CA on 8/22/11 11:40am
Msg #394467

Sanity Check - Signature Affidavit-Power of Attorney

I have been told by SS and Title that a Borrower (husband) with PA can sign a Signature Affidavit with a Jurat. I have scoured the web and NR to see if there might be an update to PAW post (post #49630) 7/02/05.

As PAW mentioned, “An attorney-in-fact cannot take an oath for the principal, therefore the attorney-in-fact cannot sign a document that has a jurat attached.”

However they can use an acknowledgement… (post #50538)

I also checked with a lawyer friend and he agrees with PAW but could not point me to a CA law or any other legal doc confirming the fact.

Appreciate your help… and updates

Reply by Marian_in_CA on 8/22/11 11:46am
Msg #394469

Just my opinion on this --- it's not your decision here. If the document receivers have requested a certain notarial act, you go with it. As a CA notary, you aren't certifying their capacity on AIF. you're only notarizing the signature of the person signing it. The contents of the document are none of your concern as a notary. If the signer swears to the contents...then that's what they do.


If it's wrong, it's not your problem.

Reply by GOLDGIRL/CA on 8/22/11 12:10pm
Msg #394471

This particular statute that Paul cited is one of several in Florida that are so helpful to notaries but are completely lacking in CA. It's one thing to sign for another person, but totally ludicrous that the person with POA can take an oath for someone else, IMO.

In any case, go with Marian on this. Don't lose an account over it. These lenders want this stuff affirmed and signed, having no idea what they are really asking. And like Marian said, we're just following directions. If the POA signer wants to swear this is how the other person signs his/her name, or whatever, so be it...none of our business.

Reply by Notarysigner on 8/22/11 11:57am
Msg #394470

I agree with Marian's post...it is not your concern.....but is he signing for himself or as the AIF for his wife?

the Jurat (the one I use) states,." ........Subscribed and sworn to (or affirmed) before me this _____ day of __________, 2011 by ________________________________________________________,
proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me..."

The question is,..who appeared? Him or his wife? He cannot "appear" for his wife, only sign for her. IMO

Reply by Calnotary on 8/22/11 12:14pm
Msg #394472

James he is appearing before you for his wife

And his name will be in the Jurat.

Reply by RE/CA on 8/22/11 12:27pm
Msg #394474

Re: James he is appearing before you for his wife

thank you for your help and sanity check... much appreciated...

Reply by Notarysigner on 8/22/11 1:07pm
Msg #394480

Re: James he is appearing before you for his wife

as long as it's his name, no problem,...but not his wife's

Reply by Bob_Chicago on 8/22/11 12:28pm
Msg #394475

Although Paul, of blessed memory,amd I had

lenghty "discussions" over the years, I generally agreed with him.
I agree with him on this one also, BUT I let a AIF sign standard closing affidavits. and have notarized them. Not the same as one person testifying in court for another.
IMO , they are stating , under oath, that to the best of their knowledge and belief , the contents of the document are true and correct. ( eg. no other liens, no change of survey matters, that is who they are, they live at the PIQ, etc, etc)
If the lender/TC can not "go after" the signer or party on whose behalf the AIF is signing for, for a false statement, then that is the Lender's/TC's problem.
All that the NP is stating is that the person signing the doc, signed it under oath, then the NP is
IMO ok.
I have seen many instances where a lender/TC will use a Jurat where an Ack is called for and vice versa. (eg. compliance agreements, power of attorney for doc changes, privacy statements, etc, etc. ) Goes back to the Golden Rule, The one with the gold makes the rules.
As a practical matter, although technically wrong. if you send back unsigned dox, then the loan,
in all probablility , ain't gonna close.
I would think that so long as you make a good faith attempt to ID (and swear in when necessary) the person before you and watch them sign, you are not going to get into any trouble with your state"s NP governing authority.

Reply by JanetK_CA on 8/22/11 12:46pm
Msg #394478

Re: Although Paul, of blessed memory,amd I had

I agree with all of the above. I think this is one case where the California required wording is an advantage, because the jurat verbiage has us specify who it is that is appearing before us, as James stated. That way it's clear that the oath is being taken by the AIF, not by the principal they are signing for. Keeps our part pretty cut and dried, imo.

Reply by SharonMN on 8/22/11 4:06pm
Msg #394538

For a SIGNATURE affidavit, aren't they saying that the signature is their correct signature? If Bob gave Jill POA, the signature affidavit should be for Jill's signature since she's the one signing (on behalf of Bob). So I'd give the oath to Jill and she'd swear that the sample provided was HER signature.

I mean, if Bob were around to provide a sample sig for the affidavit, why wouldn't he sign the whole loan pkg. instead of giving Jill POA?

Reply by JanetK_CA on 8/22/11 5:49pm
Msg #394570

Good catch!

I missed that part - or forgot by the time I got to the bottom of the thread.

I would have the person in front of me complete his/hers, but I would agree that an AIF couldn't sign the other person's actual signature for them. If I had specific instructions from the lender that they wanted the AIF to sign the principal's Signature Affidavit as they were signing for that person on all the other docs, I would follow instructions. However, that's obviously not what they're usually looking for on that document and it doesn't make any sense to me for the vast majority of Sig/Aff forms I see. (I can think of just a couple where it might have worked.)

I guess I've been lucky because in all of the POA signings I've done, none had included a Sig Aff for the person who wasn't present and I don't recall ever running into a situation where the AIF was asked to take an oath for the principal. I do recall packages that had all acknowledgments for docs that needed to be notarized.