Posted by Carol Graff on 2/22/11 10:20pm
Msg #373756

question about credible witness

If you were doing a loan signing in a bank branch, needed 2 credible witnesses because one borrower's ID did not match the loan docs, would it be unethical to use two LO's from the same branch (inc. one who was the LO for the loan you were signing?). First and last name of BO was correct--middle was used on DL, but previous married name was used on DOT & Trust docs.

Reply by Sylvia_FL on 2/22/11 10:29pm
Msg #373758

if the borrower has ID why would you use credible witnesses?

Reply by Carol Graff on 2/22/11 10:30pm
Msg #373759

Because ID did not match exactly. Middle name different on DL & DOT. California requires two credible witnesses if ID not correct.

Reply by Calnotary on 2/22/11 11:11pm
Msg #373763

Reread the rules for CW, and this is not a case to use CW according to the handbook.

Reply by GOLDGIRL/CA on 2/22/11 11:14pm
Msg #373765

I think (maybe) what Sylvia is saying is just cos the ID didn't match the docs is no reason to use CIWs. It's reason to get the lender to redo docs to match the ID (or allow corrections on the existing docs) or the borrower to get updated ID to match the name they chose to use on the docs. In any case, since you went down the CIW road, I don't see that it's unethical to use the bank people, even the actual LO, as CIWs. They take an oath they know her by whatever name you're trying to match .... it might be considered a conflict of interest by some.
Many CA notaries interpret the CIW code very strictly and would rather die that use CIWS; others use CIWs at the drop of a hat. I've been down this road before where all of a sudden the pressure is me to get the docs signed, no matter how looney the ID. At this point I just throw it back at them - get your docs in order or your ID in order. This usually results with a call to another notary who'll play ball and get the job done. OK by me!

Reply by Marian_in_CA on 2/23/11 12:01am
Msg #373769

Carol, that's not entirely correct. CA does not require credible witnesses if their ID isn't correct. It allows for CWs *if* it is difficult or impossible for the person to obtain identification...period. This person had ID. If it didn't match the documents, that isn't a reason to use CWs.

Also, CWs must know the person well enough to swear, under oath, that:

1. They personally know the signer.
2. The signer is the individual named in the document being signed.
3. The the signer does not have any legal form of identification.
4. It would be difficult or impossible for the signer to obtain proper identification.
5. They have no financial interest nor are they named in the document being signed.

By getting two people from the bank branch to be CWs... and by issuing the oath to them properly... which includes describing the 5 things above... those people would be perjuring themselves because the person *DOES* have ID, and it doesn't sound as if they know the signer personally.

If the documents are wrong, they're wrong. That's not something you can fix.

Reply by Marian_in_CA on 2/23/11 12:11am
Msg #373770

Let me add... this are the 5 requirements, as written in the handbook and state code. It's what I read out load when issuing the CW oath (see pages 8-9 of the current handbook, under Identification):

"1. The individual appearing before the notary public as the signer of the document is the
person named in the document;
2. The credible witness personally knows the signer;
3. 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;
4. The signer does not possess any of the identification documents authorized by law to
establish the signer’s identity; and
5. The credible witness does not have a financial interest and is not named in the document
signed."

#2 requires personal knowledge...
#4 requires them to swear that the person does not posses "any" ID...

I think those are the two in this case that clearly make CWs in this situation inappropriate and illegal... not to mention unethical.

Reply by James Dawson on 2/23/11 1:07am
Msg #373772

Marian is absolutely correct the must be

able to answer the five qualifies she mention. The only times I have used it is when someone was paralyzed or physically unable to move about due to an illness and license/ID had expired.

Reply by Carol Graff on 2/23/11 10:20am
Msg #373795

Re: Marian is absolutely correct the must be

The ID the woman had was current. The loan docs were put in the same name as her Trust (which was First, Previous Married Name, New married name. So she was unable to come up with ID in her previous married name as she does not use it anymore. Believe me, this was not my idea. The escrow officer called me and told me (in a very condescending way) she had been a notary since 1987 and knew it all, that I could use credible witnesses, etc. and LO could be one of them and "that the loan had to be signed today". I knew docs should have been changed, but no one was going to do this. Woman also had a Dr. appt. and had no time to go home and see if she had any different ID. Obviously, bank wanted it signed yesterday. So, yes, I was "strongarmed" into doing it this way. I did call NNA and they said using a LO was not a conflict of interest. But I don't believe the 2nd LO knew the lady at all. This, however, is not my problem as I administered the oath, took their ID and had them sign my journal. I was so bothered by all of this, LO's need to ck ID"s before they do loans. IMO, it is rarely done. I have used this SS many times and they are good people--however, I'm sure I would have lost that acct. if I protested any further. Be assured, I will not do anything illegal or unethical to keep an acct, but I felt this covered me. I have walked away from improper ID/backdating before and will do it again.
Thanks so much for all of your input on this.

Reply by janCA on 2/23/11 10:45am
Msg #373803

The escrow officer doesn't seem to know diddley squat..

when it comes to current notary law. Basically the LO that didn't know the signer was and could have been a witness to the transaction but not a credible witness. He/she didn't know the principal from Adam, obviously. I think I would send her (escrow officer) a copy of the law relating to credible witnesses from the handbook as she doesn't seem to keep up.

If her ID stated her current name in any way, it is acceptable. ID = Mary Smith Jones, Loan Docs = Mary Jones.

I agree about the lender acquiring the ID from the very beginning, as this would save a lot of problems at the signings and headaches for the SA.

Reply by Carol Graff on 2/23/11 12:29pm
Msg #373822

Re: The escrow officer doesn't seem to know diddley squat..

Thanks but the docs had a different middle name than the DL. Also, I can't say for certain that other LO did not know them personally, just my gut feeling.