Posted by Buddy Young on 4/30/12 11:10am
Msg #419348

Duplicate certificates for CA. revisited

I've been doing a lot of thinking about Marion's post and Hugh's response on this subject.

I reviewed the S.O.S. handbook and could find nothing in there that would prevent me from issuing a duplicate certificate. What I did find was: Your stamp has to be applied at the time the certificate is filled out and the date on the certificate has to be the date the person(s) appeared before you. OK. If I did miss something in the handbook, someone please enlighten me.

Someone chastised Hugh for arguing his point and then saying Marion was right. That's because they are both right. Im my mind it can be done either way. Hugh gave us the result of his many years of practicing law and made an excellent, resonable argument. I would use that argument in court. OK, I know what you are going to say, who wants to be in court? If you do end up in court after issuing a duplicate certificate, you wouldn't be the one on trial. Besides how would anyone even know or find out that it was a duplicate certificate?

If someone uses our certificates unlawfully, we can't be held responsible for the unlawfull actions of another person. Someone can use our certificates unlawfully no matter which way you do it, and it probably happens.

I think there is a better chance of ending up in court doing it Marion's way. Example: What if it causes a borrower to lose their rate lock and interest rates go up. Then the borrower would name the notary, the TC and the SS in the lawsuit. In that case you would be the one on trial.

Just thinking out loud.

Reply by Stephanie Santiago on 4/30/12 11:22am
Msg #419350

The signer would need to appear before the Notary, so

the Notary can and will follow California notary Law.
It was not the fault of the Notary that the acknowledgment was lost/misplaced.
If the Notary follows California notary Law, they cannot be named in a lawsuit.

Reply by VT_Syrup on 4/30/12 12:07pm
Msg #419358

Re: The signer would need to appear before the Notary, so

"If the Notary follows California notary Law, they cannot be named in a lawsuit." The notary can be named in a lawsuit for having red hair (even if the notary is actually bald). If the notary is accused of something that isn't actually a tort, the notary will win, eventually.

Reply by Stephanie Santiago on 4/30/12 11:23am
Msg #419351

No duplicate - new notarization n/m

Reply by Marian_in_CA on 4/30/12 11:36am
Msg #419353

"If you do end up in court after issuing a duplicate certificate, you wouldn't be the one on trial."

No, but you could be on the receiving end of an audit from an investigator from the SOS's office facing fines and revocation of your commission.



"Besides how would anyone even know or find out that it was a duplicate certificate?"

I believe I explained that. You never have any way of knowing which documents will end up questioned or litigated. Even the most seemingly routine document could be questioned depending on the circumstances.

Let's say you were lied to...they didn't really lose a certificate. They just TOLD you that so you could send them another one. You have no way of knowing they're telling the truth unless you get that original certificate back, too, and destroy it yourself.

Well, what happens if those documents are reviewed and checked against your journal? Remember that any member of the public can request a copy of your journal entries with the right information. That package had 8 acknowledgments... but your journal only has 7 entries. How do you, as a notary explain that? You tell them, "But they told me they lost one so I issued a duplicate. They are the ones who did something wrong!" How far will that fly with the SOS? You have to have an accurate, sequential journal in California.

And, let's say the "missing" journal entry happens to be for a deed of trust? Uhoh... now you're really in trouble because you not only failed to enter it in your journal but you failed to get a required thumbprint, too. Failure to obtain a thumbprint is (up to) $2,500 fine per event and can be imposed by either the SOS or any prosecutor... so it's not just a SOS punishment there.


My whole point is that it is a dangerous path and issuing a duplicate puts your journal records at risk. Sorry, but no amount of "business convenience" is worth it. Besides, no notary will be held legally accountable if the TC or Lender loses paperwork that the notary actually completed. That's just ridiculous.

Reply by Stephanie Santiago on 4/30/12 11:42am
Msg #419356

Thank you, Marian. n/m

Reply by Bob_Chicago on 4/30/12 12:08pm
Msg #419359

I am so happy that I do not need to deal with CA rules.

Based on what I have seen here over the years.:
Stringent journal rules requiring multiple ,detailed, signed with ID info duplicate entries for multiple dox signed at the same time. Seems that journal entry time can easily exceed signing time.
No one is seems quite sure about matching up names for dox to ID
Need to guard seal and journal with your life.
etc, etc.
I'll deal with the snow and cold, thank you. Plus I am not requied to consume alflafa sprouts several times a day.
Nice people , though.

Reply by Glenn Strickler on 4/30/12 12:14pm
Msg #419361

Re: I am so happy that I do not need to deal with CA rules.

"Plus I am not requied to consume alflafa sprouts several times a day."


That's just in some of the coastal areas. Go inland and we still BBQ steak and drink black coffee.

Reply by Stephanie Santiago on 4/30/12 1:22pm
Msg #419376

Oh Bob! Cute on the sprouts...do you think all people in CA

love sprouts.
As far as the journal, one becomes accustomed to what is required.
It isn't a big deal.
Thank goodness I don't have to deal with snow.

Reply by HisHughness on 4/30/12 12:23pm
Msg #419364

The reason I conceded Marian was correct...

...was that Glenn said there was a 2009 opinion by the California attorney general that ruled replacement certificates inappropriate. I would accept such an opinion as having the force of law. Glenn has been asked to give a specific citation to the opinion, and has not yet done so, I assume because he has been busy. When he does produce it, that should put the matter to rest, at least as far as California goes. If he cannot find such an opinion, however, my position remains unchanged: To refuse to issue a replacement certificate under appropriate circumstances and with appropriate safeguards is the notary inflating her role beyond all reason and inserting herself into the signer's business, perhaps to the signer's detriment. That is a dangerous course to follow.

As to Stephanie's comments:

1. The signer did appear before the notary on the date the notary cited in the certification.

2. Syup -- may I call you Karo? -- has already appropriately responded to the possibility of a lawsuit against the notary.

3. I keep repeating this, but no one seems to be absorbing it: For every scenario you paint of how a replacement certificate can be misused, I can paint a scenario of how an original certificate can likewise be misused. To keep throwing up potential misuses does not move the discussion further at all; it simply bogs it down in pointless digressions.

Reply by Glenn Strickler on 4/30/12 1:06pm
Msg #419373

Re: The reason I conceded Marian was correct...

I was asked by Brenda to post the link to the opinion. Sure, no problem except that now I can't find it on the AG website, so when I get home I will search for my hard copy and get back to everyone. Right now, I am out taking advantage of my restored eyesight, posting on a mobile phone waiting for everyone to get with it ........

Reply by VT_Syrup on 4/30/12 3:12pm
Msg #419392

Re: The reason I conceded Marian was correct...

I've heard a rumor that the use of Karo syrup on pancakes is being considered as an alternative sentence for non-violent offenders. Flatlanders buy maple syrup from their neighbor down the road. Real Vermonters boil their own.

Reply by Buddy Young on 4/30/12 12:37pm
Msg #419369

Re: Marion, you should be a teacher!!

Yet noone has quoted me an excerpt from the handbook saying issuing a duplicate certificate is unlawfull or improper.

If I did issue a duplicate certificate, it would be noted in my journal and my journal would be correct and up to date.

I never said I would issue one, I just said I don't see anything wrong with it.

Reply by FlaNotary2 on 4/30/12 1:11pm
Msg #419374

I have one question: Is it required that CA notaries

complete the certificate and affix their seal in the signer's presence?

Florida's Attorney General issued an opinion stating that the certificate must be completed in the presence of the signer, because this is part of the notarization, and the notarization must be done in the signer's presence.

If California does not have such a rule, Marian still has the opinion of the SOS on this one. Is it written, though? We've seen on here many times where the CA SOS will answer the same question two completely different ways. Those types of things should be in the handbook.

I personally would never issue a duplicate certificate. They can say they lost the first one - but come on, how come they always "lose" the certificate, but they never "lose" the signature page to the mortgage? I don't buy it for a second.

Reply by Stephanie Santiago on 4/30/12 1:25pm
Msg #419377

Yes, acknowledgment/Jurat must be completed in

Signer's presence.

Reply by HisHughness on 4/30/12 1:46pm
Msg #419380

Re: Yes, acknowledgment/Jurat must be completed in

Is that part of the California Code Annotated, Stephanie, or is that the CCA as filtered through Stephanie Santiago? Can you give a cite to the CCA? We deal so much on this forum with The Law According to Individual Notaries that I have grown quite skepitical when I'm told something is the law.

The Texas SOS will tell you that it is the better practice to complete the certificate in the signer's presence, but there is no legal requirement to do so, and I do not on closings.

Reply by GOLDGIRL/CA on 4/30/12 3:04pm
Msg #419391

It's not Karo for VT Syrup, Hugh, it's Maple ....

BTW: There is, of course, no law in CA requiring a certificate to be completed in front of the signer (such as I understand is required in FL). In fact, one day I would like to find and then bronze a TC notary who has ever completed a certificate at a signing table in CA.

In any case, CA does require that an ack/jurat be filled out at the same time the notary signs and stamps.

Reply by JanetK_CA on 4/30/12 6:47pm
Msg #419409

You *should* be skeptical!

No wonder people think California notary law is so complicated! If all the things that people claimed here were part of California law, the handbook would practically have to double in size! Well, so that's a bit of an exaggeration, but you get the point...

GOLDGIRL/CA is right that you do not have to complete the certificate at the table (although I think it's a smart practice). You just have to have the certificate complete before you apply your signature and stamp. Also, I could not find ANY reference at all to the issue of whether or not a duplicate certificate can be sent or if any correction to a certificate requires a new notarization and for the signer to personally appear again. I think it would require some pretty significant reading between the lines to draw this conclusion from what is stated in our handbook.

Notary best practices may be another thing entirely, though. I think there's no substitute for using good judgment and common sense, and every situation is different. But clearly so is everyone's idea of "good judgment".

If there have been any written rulings on these issues, I'd very much like to see them, too.

Reply by LKT/CA on 4/30/12 5:54pm
Msg #419403

Re: I have one question: Is it required that CA notaries

<<<I personally would never issue a duplicate certificate. They can say they lost the first one - but come on, how come they always "lose" the certificate, but they never "lose" the signature page to the mortgage? I don't buy it for a second.>>>

Completely agree!!

Reply by FlaNotary2 on 4/30/12 9:14pm
Msg #419421

Well, just in case you don't veliwvw n/m

Reply by FlaNotary2 on 4/30/12 9:19pm
Msg #419422

Well, just in case you don't believe me, Hugh

Attorney General
No. 073-185
1973 Fla. AG LEXIS 215; Op. Att'y Gen. Fla. 1973-185
May 24, 1973

"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." (...) and the signer must be present at the time his signature is notarized. (...)
Notarization of a document cannot reach completion until a notary public has complied with the aforesaid statutory requirements."

Reply by JPH13/MO on 5/1/12 3:00pm
Msg #419482

Re: Well, just in case you don't believe me, Hugh - for KS

The Kansas notary handbook states in 2 different places that you should NOT notarize outside the person's presence. Here is one example:

never notarize an unsigned document, and never notarize a document
outside the presence of the person

So I always sign and seal in their presence.

Reply by HisHughness on 5/1/12 3:16pm
Msg #419486

Re: Well, just in case you don't believe me, Hugh - for KS

I don't believe I ever indicated any doubts about your believability.

I regard statutes and written court, AG & SOS opinions as establishing the parameters of what I can and cannot do as a state functionary. Handbooks, verbal comments by SOS staffers, postings on NotRot and speculations by my bookie I regard as advisory, not directive.

As I have stated here several times, the Texas SOS will tell you that the better practice is to notarize in the presence of the signer. I don't have a problem with that judgement. However, in my practice I also factor in the convenience of the borrowers. In Texas, most closings will take a minimum of 45 minutes to an hour; with questions, you can add to that in proportion to the number and difficulty of the questions, including whether the title company or lender need to be consulted. To add to that the time to complete 12-18 notarizations -- what we typically encounter in Texas closings -- is not something that any borrower I have queried wishes to do. Consequently, since it works best for both the borrower and for me if I notarize later, I choose to do it later. In the decade I have been doing this, that has not caused a single problem -- if you overlook the apoplexy it gives Robert every time I point out that I don't follow his procedure.