Posted by Marian_in_CA on 7/26/11 7:29pm
Msg #391403

Interesting information from CA SoS's office...

The SoS has a Sample workbook/education manual for education vendors. The current one is from this year, and it is approved for education purposes. I was reading through it to see what it says vs what's in the handbook.

See: http://www.sos.ca.gov/business/notary/forms/notary-education-sample-workbook.pdf



The discussion about the use of CWs the other day is interesting, because, on page 24, they give the following example:

"Nat Notary is called to notarize Irene’s signature on a company document.
Nat Notary and Irene have never met before. Irene is away from home and
left her identification, her Illinois driver’s license, in Chicago. Irene asks
Rene to vouch for Irene because Irene and Rene have known each other for
years. Nat Notary has also worked with Rene before. Rene can appear as a
credible witness for Irene so that Nat Notary can complete the notarization."


So, in this case... Irene does have ID, she just forgot it. And yet, according to the approved education materials, this is OKAY.

It seems to tell us something very different from what many of us may actually practice. How many would tell Irene to have her ID FedExed to her, since she, indeed does posses ID?

It would seem that the SoS has a more lenient idea of what "very difficult or impossible" means.

Reply by jba/fl on 7/26/11 7:35pm
Msg #391407

If Irene drove from Chicago to CA, then she did so without her DL. If she flew to CA, how did she get through the security at the airport without DL or some sort of acceptable ID?

Reply by Marian_in_CA on 7/26/11 7:36pm
Msg #391408

LOL! Technicalities! n/m

Reply by Notarysigner on 7/26/11 8:12pm
Msg #391411

>>>>Nat Notary has also worked with Rene before. Rene can appear as a
credible witness for Irene so that Nat Notary can complete the notarization.<<<<

I have never disagreed with you Marian, ever; But I'm gonna give it a shot. The scenario does not meet the criteria for Nat the notary being a creditable witness. It says "he worked with Rene before". That does not constitute knowing someone. It doesn't say for example how long they worked together. To qualify in such a case they would have to have interacted with each other on a number of occasions WITH her being identified by various/different people during those encounters. There, I said it.

ANd yea, how did she get on that plane with no ID if she left it on the table at home. ---signed, Kiosk Kenny. ROFLMAO

Reply by Notarysigner on 7/26/11 8:14pm
Msg #391412

correction..

Actually now that I reread it, I'm not disagreeing with you at all, it's the example they gave.

Reply by Marian_in_CA on 7/26/11 8:17pm
Msg #391413

Re: correction..

Exactly... that's what I'm saying! This is the example in THEIR approved education booklet. That's what got me!

Reply by Notarysigner on 7/26/11 8:22pm
Msg #391417

Re: correction..

Whew...then our record is still 100% cool! So much for work books and the people who write them.

Reply by Marian_in_CA on 7/26/11 8:28pm
Msg #391422

Re: correction..

And this is the APPROVED one, from the state.... the one that they say education vendors can teach from.

It makes me wonder if they're wrong or if we're applying too high of a standard. Either way, how can we refute something that they say is okay?

Reply by FlaNotary2 on 7/26/11 8:19pm
Msg #391414

First of all, this circumstance is extremely unlikely

Who could get on a plane from Chicago to California without an ID? I suppose she could have driven... without a driver license...

Even in the highly unlikely event this did occur, I think this might potentially - in California - fall under the "very difficult" category. In Florida, our CWs have to swear that the person does not *possess* any acceptable ID. Whether "possess" refers to "not in my possession at this moment" is a question for the attorney general - but I would not notarize with a CW under the circumstance the California SOS provides.

Reply by Marian_in_CA on 7/26/11 8:26pm
Msg #391420

Re: First of all, this circumstance is extremely unlikely

Right... the unlikely hood of this *actually* occurring aside.... the point is that this is an example from THEIR approved education workbook, wherein they say this situation is an acceptable use of a CW (in California).... and I don't know that many CA notaries here would actually do it because she *does* have ID, just not on her.

Again, the point is that CA is saying it's okay... and it seems they have a much more lenient view of "very difficult or impossible" than most of us do.

After all, would it be very difficult or impossible for somebody to overnight her ID to her? Each situation is different, of course... maybe it would, maybe it wouldn't... but it doesn't seem to be an issue, since the SOS is saying a CW is acceptable.

Reply by Marian_in_CA on 7/26/11 8:38pm
Msg #391423

To add to that...

"but I would not notarize with a CW under the circumstance the California SOS provides."

I'm assuming you mean if you were a Ca Notary.... if that's the case, then what justification can you give for refusing? If their approved workbook gives that situation as an acceptable scenario, then what grounds do you have for refusal? Remember, we're talking CA here, and we don't have the right to refuse a request if we don't feel right about it... we have to honor ever legal request for notarization.

Reply by FlaNotary2 on 7/26/11 8:46pm
Msg #391426

I could easily justify the refusal

The thing is, Marian - and I do not mean any disrespect to you - but when there is a conflict between law and handbook - the law takes precedence. I could justify this refusal by saying that I interpret *THE LAW* differently, and until a circuit judge or attorney general tells me otherwise, my interpretation of the law will not change.

Using the "I can't deny a lawful request for service" is a cop out, IMO. Yes, there are many circumstances where you can deny a lawful request for service - lack of ID is one of them. The California SOS makes several assertions that are not addressed in California law, and the law comes first.

JMHO

Reply by Marian_in_CA on 7/26/11 8:54pm
Msg #391429

Re: I could easily justify the refusal

If somebody lacks ID, then of course you can refuse because it isn't a lawful request...in that they aren't producing satisfactory evidence of their identity. There are plenty of times we can refuse...

The law says that, absent any other form of acceptable ID, the signer can utilize the CW option. It is perfectly lawful for them to do so. And, according to the education materials, this situation is acceptable. This is what I'm getting at... many of us feel differently, but their official literature says otherwise, and the LAW only says that the witness has to reasonably believe the "very difficult or impossible" bit.... not the notary.

Reply by Lee/AR on 7/26/11 8:20pm
Msg #391415

Oh, good grief… it’s obvious that Irene owns the company and piloted her private Leer jet to CA where she met with Rene, an old college chum. Now, Rene got Nat the job because she knew him from some party they both attended… and Irene said ‘hire robo-signers’, so Rene, remembering Nat’s somewhat robot-like demeanor at the party, thought he’d be a perfect fit for the job…. and then…

Reply by Notarysigner on 7/26/11 8:24pm
Msg #391418

PLEASE continue I believe you. LOL n/m

Reply by FlaNotary2 on 7/26/11 8:27pm
Msg #391421

It's also obvious that the writer failed to mention taht

Irene's home caught fire after she left on the private jet, and her ID was thereupon engulfed in flames, as were Irene's birth certificate, and social security card. Because Irene's home was located directly next to the health department in the county where she was born, the fire spread and Irene's original birth records were subsequently destroyed. Under the new Real ID requirements, Irene would not be able to obtain ID, and this qualifies as "difficult or impossible".

Reply by MW/VA on 7/26/11 8:44pm
Msg #391424

Sounds like XYZ had their hands in writing the manual. LOL It contains the usual garbled info they are so famous for. LOL

Reply by Jules/CA on 7/26/11 9:16pm
Msg #391432

Hence, the "gray area" I mentioned. You guys are funny! n/m

Reply by JanetK_CA on 7/27/11 11:51pm
Msg #391719

I hadn't thought of that, but it wouldn't surprise me!

Reply by FlaNotary2 on 7/26/11 8:47pm
Msg #391428

On another note

I would like to see nation-wide abolition of the Credible Witness concept. It is archaic and is not used properly 95% of the time.

Reply by Sylvia_FL on 7/26/11 9:25pm
Msg #391434

Re: On another note

I have had to use it on a couple of occasions. One where the client had to get a copy
of her birth certificate so she could get ID. Another where the person was physically unable to get an ID. But I agree with the concept is not used properly a lot of times.
But it is necessary in some cases.

Reply by Jules/CA on 7/26/11 9:11pm
Msg #391431

I have spoken to the SOS on several occassions about the interpretation of the notary laws. Of course, since they are not attorneys they cannot give legal advice. However, what they did tell me, on this particular occassion, led me to believe that there is a lot of "gray" areas in the laws and it is all how you interprete them.

In this situation, Irene is in CA and her id is in Chicago. According to the latest NNA notary workbook it says that when taking an oath or affirmation, each credible witness must state the following... This is one of the statements being made while taking an oath or affirmation of a credible witness, "The credible witness reasonably believes the signer's circumstances make it difficult or impossible to obtain an ID card.".

I believe that this is one of those gray areas. Who is to say what the meaning of "make it difficult or impossible to obtain an ID card" is to any person who is asked this. If the credible witness believes this and that witness has a approved ID, then there would be no reason for Nat to not notarize Irene's sig.

At the time Irene needed to get her signature notarized she was in California and her ID was in Chicago. I think that it would be impossible for her to get her ID because any solution would mean the document wouldn't get signed until the next day at the earliest.

This is where common sense comes into play. Wouldn't it be common sense to say that Irene could not reasonably get her ID in order to sign the document that day? Of course she has an ID, but not with her at the time, and the location of the ID certainly was not a 30 minute drive away, but many days of driving which is not "reasonable" in order to get the document signed and Irene's signature notarized.

Reply by Marian_in_CA on 7/26/11 9:40pm
Msg #391436

That's what I was talking about the other day. The concept of "very difficult or impossible" is only noted when it relates to the CW themselves and what they "reasonably believe" to be true and are willing to swear to under oath. That determination is not up to the notary -- and nowhere in the statutes or the handbook (that I can find) does it give that right to the notary.

My argument is that "very difficult or impossible" is a relative/subjective idea. It can means various things to each person. The NOTARY may think that it would be easy or even possible to get the proper ID... but again, (in CA) it's not the notary's job to make that determination. It's the notary's job to make sure the CW is clear about the things they are swearing to. If the CW still agrees to the oath after that... the notary's job is done and the responsibility lies with the CW who took the oath.

And, in the case of this educational workbook... which is officially approved by the SOS Notary Division... it appears that their interpretation is much looser than many notaries here.

Most notaries here would likely tell Irene that she couldn't use a CW because she did have ID... and therefore a CW is not an option. From what I'm reading in their publication, this is an incorrect practice... and that we should allow it if she has a CW willing to swear, under oath, that the CW believes it would be very difficult or impossible to obtain another form of ID.

Do I personally agree with it???? Hmmm.... not so much. But... it seems to me that if the SOS says it is a lawful request, and we refuse it... then we're putting our commissions at risk for refusing a lawful request.

Reply by jba/fl on 7/26/11 10:06pm
Msg #391442

How did Irene get to CA?

She may have a broom.

She may have flown that other Leer jet, but there is still airport security - possibly?

How about a passport? See, she takes that jet on vacations too, and likes to go where the dollar gets more for the bang. She goes to South America to Rio.

Reply by Lee/AR on 7/26/11 10:12pm
Msg #391443

Re: How did Irene get to CA?

On her Leer jet. Wasn't planning on leaving the county so her passport, as FlaNotary2 explained, was left in her home, which burned to the ground. The fire was started by an overheated shredder due to the fact that she was shredding the 14 other IDs she had.

Reply by jba/fl on 7/26/11 10:13pm
Msg #391444

Re: How did Irene get to CA?

going incognito? getting new identity papers on her trip to CA? hmmm...

Reply by Marian_in_CA on 7/26/11 10:17pm
Msg #391445

You guys are too funny. n/m

Reply by Jules/CA on 7/26/11 10:48pm
Msg #391456

Re: How did Irene get to CA?

Or the laminator Irene is using to make the false id's caught on fire due to over use of the machine. But Irene couldn't help it because she needed the money to get to CA in the first place. LOL

Reply by Jules/CA on 7/26/11 10:45pm
Msg #391454

I didn't say anything about giving a notary "the right" to anything.

As a notary, when someone comes to you to get a document notarized, the notary is required to certify to the identity of the signer. If the signer doesn't have "satisfactory evidence", then wouldn't the notary give the signer the other options to establishing their (signer's) identity?

If a CW is going to be used, then the notary must establish the identity of the CW; if the identity of the CW has been established, then the notary must administer the oath(s) or affirmation(s), which includes the statement that includes "very difficult or impossible for that person (signer) to obtain another form of identification". The California Civil Code uses the same wording as the workbook "very difficult or impossible"...

I don't understand why "most notaries here" would tell Irene that she couldn't use a CW or you think that this is an incorrect practice?

The SOS or the Civil Code is not talking about whether she has an ID, it is talking about a reasonable belief that it would be very difficult or impossible for the signer to obtain ANOTHER form of identification.

Wouldn't it be like refusing to notarize a signature if the signer had a CW(s), all requirements have been met for the CW(s) and the notary told the signer he/she could not use the CW?

Jules

PS I welcome anyone who would like to comment on my post.

Reply by LKT/CA on 7/26/11 11:11pm
Msg #391463

<<<The thing is, Marian - and I do not mean any disrespect to you - but when there is a conflict between law and handbook - the law takes precedence. I could justify this refusal by saying that I interpret *THE LAW* differently, and until a circuit judge or attorney general tells me otherwise, my interpretation of the law will not change.>>>

I agree with Robert. What is written in an education manual and the actual law are two different things. But more importantly, Notaries are given access to the law via our handbook and are expected to know it....on average, we are not given access to this vendor education manual - therefore, I don't see how it's information can be an interpretation of the CW law. It's interesting that the VEM sheds light on the SOS's position regarding "very difficult or impossible" but unless and until it is added to the handbook, it's just an "idea" <as you put it> from an education manual. JMHO

Reply by Marian_in_CA on 7/26/11 11:28pm
Msg #391473

Actually, it's *NOT* the vendor education manual. It's a sample manual that vendors can use to teach their courses. It's what students are given for their 6-hour class. The SOS allows them t o just change the title page and use it as the course manual that they give to students. If they want to create a different manual/workbook, they have to submit it for approval. This is the pre-written, pre-approved one that anyone can use.

As it says on the cover:

"This Sample Workbook contains all the material a person is expected to know to pass the written notary public examination prescribed by the California Secretary of State pursuant to California Government Code section 8201(a)(4)."


As I noted earlier, though... the LAW still doesn't give the notary the direction to decide what "very difficult or impossible" is. The only time that is mentioned is in relation to the CW and what they swear to.

From Civil Code 1185:

"That it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification."

The reasonable belief of the witness.... *not* the notary. That's what I've been trying to point out. Nowhere in the handbook or the official law will you find that phrase in relation to the notary.

Reply by LKT/CA on 7/26/11 11:38pm
Msg #391478

I understand what you're saying, but what doesn't make sense is this (from the example):

"Nat Notary is called to notarize Irene’s signature on a company document.
Nat Notary and Irene have never met before. Irene is away from home and
left her identification, her Illinois driver’s license, in Chicago. Irene asks
Rene to vouch for Irene because Irene and Rene have known each other for
years. Nat Notary has also worked with Rene before. *******Rene can appear as a
credible witness for Irene so that Nat Notary can complete the notarization.******"

Based on the example, WHO just declared that Rene can appear as a credible witness.....?

Reply by Marian_in_CA on 7/27/11 12:09am
Msg #391482

That's why I brought it up... this example seems off from what many of us actually practice. We all have a perception of what "difficult or impossible means" -- and I doubt any of us would consider, "I left it at home," a reasonable response. Yet, according to the student manual published by the state... it seems that we should allow it.


The vast majority here have said many times that they will not allow the use of a CW if the person has some form of ID, even if it doesn't meet the ID requirements (expired, wrong name, etc.) The reasoning? Because they *do* have ID, but they haven't taken the time to get if fixed. Thing is, I can't find anything in our handbook or in the code where this is something we should do (deny the use of a CW). Obviously, we can't accept improper ID, that's a given, but where is it noted that we can deny them the use of a CW because *we* don't feel it is difficult or impossible to get proper ID? And, in the case of the manual... even if it means they left it a home? The law allows for use of CWs in the absence of proper ID.


As a notary, we can verify that the CWs have proper ID. We can verify that they aren't named in the document and express to them the rest of the requirements are for being a CW. If the CW has proper ID, is not named in the document and is willing to swear under oath to the 5 things they're supposed to swear to... then what else are we to do? The CW has met all of the legal requirements to establish the person's identity.


Based on the example given, the SOS is declaring that Rene can appear provided Rene fulfills all of the CWs requirements.

Reply by FlaNotary2 on 7/27/11 8:15am
Msg #391516

Marian, this brings us back to the original issue I raised

in our last thread on the subject... Isn't it one of the notary's basic duties to prevent fraud? How can a notary perform this duty if he/she notarizes a statement that he/she knows to be fraudulent?

Good practices have to pick up where the laws leave a "gray area"... and there is no question, in my mind, that a Credible Witness should not even be OFFERED to a client that has an ID but doesn't have it with them at the moment (or the ID contains errors, etc.). If the person tells me "Yes, I have an ID but I don't have it with me, so I would like to use a Credible Witness", then I would KNOW that the statements the CWs are swearing to are FALSE, and it is my duty to prevent this fraud.

This is, again, related to how the California SOS makes assertions that have no legal basis - especially the SOS's claim that the notary's function relates only to the signature. This is simply incorrect and there is no California law which backs this claim up. Yes, in most circumstances the contents of a sworn statement are not the notary's concern, but if the notary KNOWS that the sworn statement is false, the notary is a perpetrator of the crime as well by notarizing that statement.

Picture yourself in front of a judge over this - I doubt that the judge will be impressed by your "I can't refuse a lawful request!" assertion. He will probably be much more concerned that you notarized a statement you knew to be false. Using the "UPL" excuse is another cop-out. People are way too paranoid about UPL. The instances in which a state bar association will actually prosecute UPL are for extreme circumstances, not "I determined that the person before me was the person named in the document".

The California SOS has tried to way oversimplify a notary's duties. I understand your dilemma, Marian - you feel like you must follow the handbook because that is what you are given. I would argue that, unless your oath of office required you to read the handbook (and our oath in Florida does not), you are bound by the LAWS themselves, and not the handbook. The handbook is a GUIDE - it is not intended to be a supplement to professional legal advice. The SOS herself does not write your handbook - the handbook is written by people who likely have no legal education. Their handbook is only one person's interpretation of the actual laws.

When a law is confusing to the notary, the notary must make his/her own interpretation of the law and put it into practice, unless a legal opinion to the contrary is made by an attorney, a court, or the attorney general.

Thank God that I am not in California.

Reply by Marian_in_CA on 7/27/11 10:56am
Msg #391557

Re: Marian, this brings us back to the original issue I raised

I answered, that, too, Robert. Obviously, if we know somebody is swearing to something we absolutely know to be untrue... we have an out.

The problem, in this case, is the "reasonably believe" part. Who is the notary to dictate or determine what somebody *else* reasonably believes to be true?

Look at it from another way... I have certain religious beliefs that I feel are absolutely true. There are lots people out there who think people like me are idiots cult members and completely wrong. They may have an opinion that I'm wrong, and some of them may even feel they have 100% knowledge that I'm wrong... but it doesn't matter, because it's what I believe to be true.

As a Notary, in this case, we better have 100% for certain knowledge that the person is LYING about their belief. Remember that the person isn't swearing to a fact here... but to a "reasonable belief" -- so unless the person outright says that they believe the person can get some ID, then I'm not going to force my opinion on them. And when it comes to "very difficult or impossible" it's all relative/subjective opinion.

Reply by FlaNotary2 on 7/27/11 11:46am
Msg #391574

You're comparing apples to oranges

If someone has ID, it is not "very difficult or impossible" for them to obtain one - because they already have one. It is their own fault that they lost it or don't have it with them. I don't care what a CW wants to swear to - if I know that the person has an ID, I will not participate in a CW swearing that the person has no ID, when I know that statement to be false.

Reply by Marian_in_CA on 7/27/11 1:09pm
Msg #391598

Re: You're comparing apples to oranges

"If someone has ID, it is not "very difficult or impossible" for them to obtain one - because they already have one."

Robert, you're making my point for me here. A lot of notaries here feel that way. But... that's an opinion more than a fact. You can only refuse for things you KNOW to be untrue. Like I said, the "difficult or impossible" requirement is not a determination for the Notary to make. If the CW believes it to be true and is willing to swear to it... than it is what it is. We (in CA) can only refuse if we know they are lying. How can you determine if somebody's "reasonable belief" is a lie?

Lets say you have 5 random people in front of you. You asked all of them to bend over and touch their toes. Well, some of them can do it easily... others not at all. For others it could be a real struggle. From your point of view, you're looking at 5 people who appear to be capable. But, what if one of the guys has severe arthritis, scoliosis and neurological condition that makes moving/bending over intolerable? The act of bending over to touch his toes may be extremely difficult and painful, and perhaps even ill-advised. But... YOU think he should be able to do it if he just tried hard enough, right... after all... he's got two arms and two legs... just bend over already!

What I'm trying to impart is that "reasonable belief" does not equate to fact... and the notary cannot take their opinion and impose it as fact. And, as I said before, the "very difficult or impossible" belief is not up to the notary to decide, it's up to the CW.

Reply by Jules/CA on 8/2/11 8:59pm
Msg #392396

Re: You're comparing apples to oranges

Don't you think that the "swear to" part has to do with right here and now? It wouldn't be reasonable and is difficult for Irene to "run" all the way to Chicago from California in order for her to get her id and return the same day in order to get a document notarized that same day.