Posted by Buddy Young on 11/15/11 6:08pm
Msg #404087
OK, I confess, I missed something
SS called me and said that a notarization I did in July did not record. The SS looked over the docs and could not find anything wrong.
I had them send them to me and I would see if I could find anything.
At first everthing looked real good to me, no mistakes. I reviewed them again and found that the verbage on two acks was wrong for the state of Calif. The words " I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct." were missing.
The signing was in Calif. and the recording was to be done in Calif. the Signing service was in another state.
I sent them 2 loose leaf acks to place in the package, I hope this fixes the deal.
I'm usually real careful about the verbage and I know we have discussed verbage on acks and jurats before.
I just don't know how I could have missed that.
|
Reply by Karla/OR on 11/15/11 6:16pm
Msg #404090
Because you're human maybe? :O) n/m
|
Reply by Linda_H/FL on 11/15/11 6:18pm
Msg #404092
Did you have them return the original docs to
you so you could attach new acks? I don't think I would have just sent two loose acks without the docs.
MHO
|
Reply by HisHughness on 11/15/11 6:26pm
Msg #404095
At the point where I discover I've made an error...
...that delays funding or interferes with recording, I cease being picky. Send them the ack, and note on the top "Appended to xxxxxxxxxxxxxxx."
|
Reply by Notarysigner on 11/15/11 6:33pm
Msg #404096
Dang! signing in CA, CA Acks, what's the problem? n/m
|
Reply by Notarysigner on 11/15/11 6:35pm
Msg #404097
Oh I see, you're using old Docs.. n/m
|
Reply by John Tennant on 11/15/11 6:40pm
Msg #404098
Loose Acks n/m
|
Reply by John Tennant on 11/15/11 6:42pm
Msg #404099
oops too fast
I would not do it at all. Also, this is four months after the fact. Loose acks and those that have been back dated (and that would have to have been done at this point) are both wrong. JMHO
|
Reply by Buddy Young on 11/15/11 6:49pm
Msg #404100
Re: oops too fast
I'm not sure I agree with that, John.
The new acks I filled out had the date on them that the customer appeared before me so I don't see anything wrong with that.
Sure, technically it may be back dating, but I just replaced an ack that had been previously done, with the same info, except the verbage of the ack itself.
I'm with Hugh on this one, I just got it done as fast as I could and got the acks in the mail the same day.
|
Reply by Notarysigner on 11/15/11 7:21pm
Msg #404103
Re: oops too fast
So what happens to the old "ACKS" ? do they jus send them back to you?
|
Reply by John Tennant on 11/15/11 10:17pm
Msg #404119
Your Right Buddy, n/m
|
Reply by John Tennant on 11/15/11 10:20pm
Msg #404121
Oops again,
Technically it is backdating. That is illegal, no matter how you cut it.
I understand what you are trying to do, however, doing it illegally opens you up to a lawsuit. I would not have done it. n
JMHO
|
Reply by JAM/CA on 11/15/11 11:45pm
Msg #404126
Completely illegal in California what you did. You cannot simply send a loose certificate for a former date without the document being attached to it and the signers appearing before you again. You also backdated an acknowledgment, which is completely illegal. Your mistake or not, the proper procedure is to have them send you the original document, go back to the signers and date for the date they appear before you.
|
Reply by HisHughness on 11/16/11 2:02am
Msg #404128
***Completely illegal in California what you did.***
Joan, can you give a cite for that contention?
I would have no problem doing it in Texas.
|
Reply by Linda_H/FL on 11/16/11 7:50am
Msg #404130
This might help - the CA handbook says
"The certificate of acknowledgment must be filled completely out at the time the notary
public’s signature and seal are affixed." It also says in part "In the certificate of acknowledgment, the notary public certifies: • That the signer personally appeared before the notary public on the date indicated in the county indicated;"
My take on this - if he affixes his signature and seal today (for example) then IMO not only must the certificate bear the date he affixes his signature and seal - today's date, but the signers must appear before him on that date. Completing and signing an ack after the fact and putting the original previous date on it is, technically, backdating...
We could not do this in FL as we are not allowed to make these corrections or replacements after the fact - our manual is clear...page 29 - but FL law and TX law don't apply here -
JMO
|
Reply by HisHughness on 11/16/11 8:16am
Msg #404131
Re: This might help - the CA handbook says
I don't see anything at all in that handbook cite that prohibits what Buddy did.
If I understood Joan's position correctly, one could not do a signing on Friday night and then complete the notarizations Saturday morning. And yes, I know all the practical arguments for doing them at the table, I just don't find them compelling.
Assume a different set of circumstances. Notary certificate filled out just fine, sent in to TC, and FedEx mangles the documents so that the certificate is just unusable. Based on what several people have contended, the notary can't just complete a replacement certificate; he/she has to take the original document back to the signer, have them execute it again, and then do a new certificate.
I find that contention bizarre.
|
Reply by Linda_H/FL on 11/16/11 8:47am
Msg #404133
I see your point, Hugh...and probably in most states
you'd be dead on right -
In FL, they'd have to send us the docs to be notarized and we'd have to revisit the signers. AND it bears the current date. No two ways about it.
|
Reply by JanetK_CA on 11/17/11 3:08am
Msg #404280
I agree with Hugh (and Renee below)
I'll admit I haven't yet read this entire thread, but think some of these interpretations are a bit of a stretch from what the statutes actually say. I agree that the notary should be the one to attach the ack cert to the document, but if you make a mistake on a cert, I'm not aware of anything that says you can't make it right. I believe that the statutes address not putting *wrong* info in a cert...
|
Reply by Notarysigner on 11/16/11 9:43am
Msg #404138
You never said why notarization in July didn't record?
Maybe it wasn't the Ack at all. I know the Ack verbiage is the latest, greatest but that doesn't mean the old verbiage wouldn't record. It's got to be another reason for not recording.
Now county Clerks here can refuse to record any Doc for any reason citing they are responsible for maintaining the integrity of the records. This means some clerks could care less and others would. So then it comes down to the county clerk. I can say that there is a clerk in SLO who is a pain in the butt when it comes to her recording Docs.
I agree with JAM's post.
Sometimes we need to understand the definition of back dating. If a Doc was created today 11/16 and we were asked to date it 11/06.....that's backdating. IMO
|
Reply by John Tennant on 11/16/11 10:19am
Msg #404146
Joan has it correct for California, I agree completely. n/m
|
Reply by Notarysigner on 11/16/11 10:34am
Msg #404148
I Found hundreds of post about back dating using search
the question could been readily answered by doing so. Interesting, there was one post addressing the issue of back dating to correct an error on a previous Doc but it doesn't what error. PAWs Post hit the nail on the head, you can look them up.
|
Reply by HisHughness on 11/16/11 10:57am
Msg #404150
This discussion is getting more and more ridiculous
Backdating, as it is commonly used on this forum, consists of taking an acknowledgement or jurat today and dating it for day before yesterday. That simply is not the subject of discussion. The subject is whether a notary may create a replacement certificate of the same date as the original.
So far, there have been emphatic but unsupported contentions that this cannot be done in California or Florida. That may well be the case, and I'm certainly not going to argue with anyone about it. If someone is going to tell Buddy that he cannot do it, or should not have done it, though, I think they should tell him why.
Personally, I believe the notary's role is that of enabling the ease of commercial and legal transactions. We do that by reducing the potential for fraud by identifying parties to transactions. Consequently, to the extent I reasonably can, I am going to interpret my role as liberally as possible to avoid creating any obstacles. I interpret that to include creating a replacement certificate when circumstances dictate.
|
Reply by Linda_H/FL on 11/16/11 11:06am
Msg #404153
Beg you pardon, Mr. Hugh...
"So far, there have been emphatic but unsupported contentions that this cannot be done in California or Florida."
I believe I cited our law and manual in Florida notaries' inability to accommodate a request like this.
|
Reply by Linda_H/FL on 11/16/11 11:09am
Msg #404154
Just in case you want direct citation
"Once you “complete” the notarization and return it to the document signer, you may not amend your certificate. For instance, if you forgot to state the type of identification or affix your seal and the document is returned to you on a later date by the receiving party, you may not correct your error. The document will require re-notarization, including the presence of the document signer."
http://www.flgov.com/wp-content/uploads/notary/ref_manual23-40.pdf
|
Reply by HisHughness on 11/16/11 11:27am
Msg #404160
Okay, Linda and Stephanie...
...I will agree that in Florida Buddy could not do what he did, which was submit not a replacement but an amended certficate. But you still have not given me any basis at all for saying that creating a <replacement> certificate is prohibited.
Stephanie, you, like other posters, have simply emphatically said that something cannot be done. Please provide some substantiation, other that just your word, repeated and repeated, that creating a replacement certificate is prohibited.
|
Reply by Linda_H/FL on 11/16/11 11:42am
Msg #404164
I read our manual, and that wording, as follows:
Notarizations here must take place in front of the document signer. Once the notarization is "complete" it's a done deal. If something comes back at a later date, then the current date prevails and, per the manual, re-notarization will be required, "including the presence of the document signer". My strict interpretation of this is that ALL notarizations are to take place in front of the document signer, not just the first time round the block.
I'd rather strictly interpret it than be charged with a felony.
|
Reply by FlaNotary2 on 11/16/11 11:56am
Msg #404173
Hugh, the Atty General has issued an opinion stating that
in Florida, the notary's signature and seal must be affixed in the presence of the signer. Therefore, a "replacement certificate" can not be issued without the document being re-notarized, per the manual.
Op. Atty' Gen. Fla. 1973-185
[...]
This statute sets forth three of the five elements of notarization: The notary public must sign his official signature; the commission expiration date must accompany the signature; and "a notary seal shall be affixed to all documents." Section 117.09(1), F. S., sets forth two additional requirements of notarization: There must be reasonable proof of the identity of the person whose signature is being notarized; and the signer must be present at the time his signature is notarized.
Under these statutory provisions, I am of the opinion that notarization of a document cannot reach completion until a notary public has complied with the aforesaid statutory requirements. [...]
|
Reply by Susan Fischer on 11/16/11 12:16pm
Msg #404178
Hugh, does NUNC PRO TUNC apply here? n/m
|
Reply by Stephanie Santiago on 11/16/11 1:22pm
Msg #404188
Hugh, it can be done, but is considered a new notarization.
Ca Notary law does not allow amended certificates.
Period.
Call it an amended certificate, but it is ESSENTIALLY, a new notarization.
|
Reply by JanetK_CA on 11/17/11 3:46am
Msg #404282
Provide a citation... where does it say that? n/m
|
Reply by Stephanie Santiago on 11/16/11 11:12am
Msg #404155
A replacement certificate becomes a NEW notarization
in itself and must complete certificate with current date.
|
Reply by Stephanie Santiago on 11/16/11 11:18am
Msg #404157
Re: A replacement certificate becomes a NEW notarization
...with Signer appearing before Notary Public as the Certificate of Acknowledgment states.
The Certificate of Acknowledgment must have date the Signer appeared before you to resign the document.
|
Reply by Stephanie Santiago on 11/16/11 11:21am
Msg #404158
By not following CA notary Law, a Notary Public may
be subject to a civil penalty not exceeding $10,000.00.
***I'd do everything to avoid a penalty of up to $10,000.00
Why take a chance......
|
Reply by JanetK_CA on 11/17/11 3:15am
Msg #404281
On what basis do you make that claim?
"A replacement certificate becomes a NEW notarization"
Presumably, in a situation like the one described in the original post, there's an entry in a journal for which an incorrect acknowledgment certificate has been created. I don't believe this situation is addressed anywhere in CA notary law. How have you assumed that it needs to be a new notarization?
|
Reply by Notarysigner on 11/16/11 11:14am
Msg #404156
I say to you, yes..when circumstances dictate in Ca. I
Also say that we don't know what those circumstances are so there is not enough information to give the correct advice.
A person should be able to research information about issues they run across and then make a decision based on their findings. It is not a good idea to tell/explain to people what to do, unless, we have never made a mistake ourselves.
|
Reply by Buddy Young on 11/16/11 11:21am
Msg #404159
Re: I say to you, yes..when circumstances dictate in Ca. I
The letter from the county clerk said the error was with two notarizations.
I sent corrected copies in a way I thought was reasonable.
My thought process was:
1.) The borower appeared before me on the date indicated.
2.) The borower provided satisfactory evidence of who she was.
If I quit posting here it will be because I'm in jail.
|
Reply by Notarysigner on 11/16/11 11:37am
Msg #404163
Re: I say to you, yes..when circumstances dictate in Ca. I
>>>> The letter from the county clerk said the error was with two notarizations.<<<<
Could you share what the error was? that would really help. p.s. make sure you have valid I.D. if in jail.///not funny sorry.
|
Reply by Calnotary on 11/16/11 11:45am
Msg #404167
James re-read his/her Original Post
" PENALTY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct." were missing. "
|
Reply by Stephanie Santiago on 11/16/11 1:08pm
Msg #404183
Buddy used an older Notarial Certificate
not the updated version that became notary law effective January 1, 2008. (AB 886)
|
Reply by Buddy Young on 11/16/11 12:08pm
Msg #404177
Re: James, the only thing I could find wrong with the
notarizations was the verbage I refered to in my original post.
|
Reply by Notarysigner on 11/16/11 2:50pm
Msg #404202
some county clerks will still accept it without that also
you're suppose to "print" your name under your signature but a lot of notaries don't do that either and yet those Docs are also accepted. Could your stamp have been illegible?
|
Reply by SheilaSJCA on 11/16/11 3:53pm
Msg #404217
Re: some county clerks will still accept it without that also
Where is it stated that you must print your name under your signature here in CA James? Or are you talking about in general... ? If I see a print name line, I do complete it, but it is not a CA requirement.
|
Reply by CH2inCA on 11/16/11 11:28am
Msg #404162
Write in the missing text?
I wonder if the fix for this problem might have been for Buddy (if possible) to write the missing text on the original cert?
Not a 'new notary act' this way.
I understand what everyone is saying about a new notarization. BUT, if you read the ACK it seems that it reads true if you fill it out later. (yes I understand that it's supposed to be filled out at time of act.)
But the ACK does not say, on this day I affixed my seal, it says, on this day this person appeared before me.
Just a thought...
|
Reply by Stephanie Santiago on 11/16/11 12:00pm
Msg #404174
Re: Write in the missing text?
The certificate of acknowledgment must be filled completely out at the time the notary
public’s signature and seal are affixed. The certificate of acknowledgment is executed under
penalty of perjury. (Civil Code section 1189(a)(1))
|
Reply by ReneeK_MI on 11/16/11 11:44am
Msg #404166
Interesting <--as far as I'll take any 'determination'
I read through the CA statutes as well as the Handbook ...to this specific situation, I find it subjective. Where FL spells it out very concisely - CA is (IMHO) silent. Were I an attorney, I'd interpret the law in favor of Buddy - but I am not an attorney.
Every part of his cert is a true statement. Taken step-by-step & word-by-word, I'm not seeing any clear/direct conflict with the statutes. They could be subjectively interpreted to prohibit the correction - but not clearly & concisely (IMO) Laws are written to be taken literally, word by word - not subjectively. The people who write laws do so with serious literal intent, and IMO silence is also intentional.
I do have to disagree with those who say this corrective action was "back-dating". Back-dating is making a false statement, certifying that someone stood before you on a date in the past that they did NOT. Back-dating is always a fraudulent & false statement - Buddy did not make a false or even fraudulent statement.
I always like to imagine these things in court - in this situation, let's say the borrower files suit and alleges the cert to be "fraudulent". The logical questions to the borrower would be:
1. Did you sign the document? (Yes)
2. Did you present yourself in person before the notary on the date the certificate says you did? (Yes)
3. Did you acknowledge to the notary that you, yourself had signed the document? (Yes)
Interesting.
|
Reply by Calnotary on 11/16/11 11:50am
Msg #404169
Re: Interesting <--as far as I'll take any 'determination'
4.- Did you send 2 acks with a date 3 months prior, Yes, and why you did not request to have the signers be in front of you? Huh, Huh, Huh, Humm
|
Reply by Linda_H/FL on 11/16/11 11:54am
Msg #404172
Re: Interesting <--as far as I'll take ... oorrrr
4. Did you appear before the notary on <<insert later date here>> and acknowledge the signature on the document a second time? Umm..err..uhhh...
|
Reply by BrendaTx on 11/16/11 12:51pm
Msg #404179
Not taking a side on this, but why do the questions matter
other than those that Renee' asked?
The authenticity is the question. If they acknowledged it, they acknowledged it.
|
Reply by Stephanie Santiago on 11/16/11 11:52am
Msg #404170
ReneeK: Correct on numbers 1., 2., and 3.
I completely agree with you.
Thank you.
|
Reply by Buddy Young on 11/16/11 1:00pm
Msg #404180
Re: Interesting <--as far as I'll take any 'determination'
Renee, That was very well said, and it represents my thoughts exactly.
I just could not of said it such a magnificant way.
|
Reply by HisHughness on 11/16/11 2:42pm
Msg #404200
I remain utterly unconvinced
I do not construe anything in either the Florida handbook or the AG opinion Robert cited, or anything cited from California, as prohibiting the creation of a duplicate certificate that in every respect duplicates the original. To so construe it thusly is an unnecessarily narrow and restrictive approach that serves no functional purpose. I'll continue to create a replacement or duplicate certificate when needed, and if I'm ever asked, will have no hesitation saying it is okay.
I frankly think it is absurd that a replacement or duplicate of something as critical as a note can be created, but you can't do that with a simple notary certification. We need to remember that our job is to assist the process, not to make ourselves central to it.
This has been a good discussion. I hope it saves some borrowers headaches down the road.
|
Reply by Linda_H/FL on 11/16/11 2:45pm
Msg #404201
I agree...great discussion...and no one got in a fight!! n/m
|
Reply by Buddy Young on 11/16/11 4:54pm
Msg #404228
Re: I agree...great discussion...and no one got in a fight!!
This has been a great discussion, thanks to everyone who responded.
I also hope this helps someone out in the future.
I actually had time to phone the SS and have them send the package to me so I could attach the certificates myself, I didn't want anyone elce to do it.
Thanks again everyone.
Buddy
|
Reply by Notarysigner on 11/16/11 3:08pm
Msg #404205
common sense
certificates can not be sent without the document they correspond to. If you notarize a document, the certificate wording should either be embedded in the document, or on an “attached” form. If you are asked to send another in the mail. You need to ask the company to send the document so you can attach it.
|
Reply by HisHughness on 11/16/11 3:12pm
Msg #404208
Once again, a bald averment is made
What is the source for that? What problems arise by noting the certificate is appended to X, giving the title and date of the instrument? That in fact is better insurance against misuse of the certification than stapling it to the document.
|
Reply by Notarysigner on 11/16/11 3:18pm
Msg #404210
it's like sending a new diaper Hugh which wet kid
get's it?
|
Reply by Linda_H/FL on 11/16/11 3:36pm
Msg #404213
ROFL James!!! n/m
|
Reply by linda/ca on 11/21/11 2:07am
Msg #404580
Re: Once again, a bald averment is made
Well, Hugh, some people are hopeless, you just have to leave them to their own demise!
|
