Posted by garland/CA on 9/10/12 4:41pm
Msg #433799

capacity as in "trustee" after name on Ack.

I know this has been discussed but would appreciate input again.

I have a DOT from Wells Fargo Bank which has the names, followed by "trustees of the so and so Trust" printed on the notary Acknowledgment. I crossed this out, as I always do based on interpretation of the CA handbook stating

"On documents to be filed in another state or jurisdiction of the United States, a California
notary public may complete any acknowledgment form as may be required in that other state
or jurisdiction on a document, provided the form does not require the notary to determine or
certify that the signer holds a particular representative capacity or to make other determinations
and certifications not allowed by California law"

the issue is how is this interpreted? Wells Fargo will not fund this loan without this wording on the Acknowledgement. They received the above from the handbook, but still refuse to fund, per their legal department.

They insist it must remain: "Our legal’s position is that the notary is attesting to the individual, not their capacity as an individual or trustee. WF chooses to indicate an individual’s capacity next to the area where we indicate the individual’s name. Again, the notary attests to the individual signing, not their capacity. That is our legal/compliance position. There are no exceptions to this requirement."

I called the SOS and they said they cannot interpret the handbook and I would have to seek legal counsel for that. What help!

Anyone think of any other recourse, or way to understand this "capacity" issue on Calif. Acknowledgments.

thanks for any help

Reply by Stephanie Santiago on 9/10/12 5:03pm
Msg #433805

Hi,
If I am unsure, I generally attach a loose certificate, after lining through notarial certificate provided.
I have a stamp that I use:
"Notarial Certificate attached".

While others may handle the situation, this is how I generally handle this situation.
Stephanie

Reply by Yoli/CA on 9/10/12 5:04pm
Msg #433806

IME, I have always crossed out ANY capacity in the notarial certificate without an issue. Don't remember if any of those were Wells Fargo.

That notarial verbiage is our jurisdiction - not the lender, not the TC, not the broker. That is our commission on the line.

JMHO

Reply by Lee/AR on 9/10/12 5:06pm
Msg #433807

I'm in AR...what do I know~~
However, it seems to me that WF has gotten tangled up in their minds between how they want their DOTs signature line worded--to include capacity--and how an Ack should be worded...just the individual--no capacity.

What they seem to have stated below IS, in fact, what you did on the Ack. Another point is: the Notary 'owns' the Certificate. While it's nice when they are pre-filled for us, it's not so nice when it's pre-filled incorrectly. Note: >><< indicates my emphasis and CAPS is my added pure opinion.


"Our legal’s position is that the notary is attesting>>to the individual<<, not their capacity as an individual or trustee. WF chooses to indicate an individual’s capacity next to the area where we indicate the individual’s name UNDER THE SIGNATURE LINE. Again,>>the notary attests to the individual signing<<, not their capacity. That is our legal/compliance position. There are no exceptions to this requirement."

Reply by ikando on 9/10/12 5:53pm
Msg #433817

Another reason not to let the computer fill in

all the blanks. I would hazard to guess that most of the forms presented in closing packages have some algorhythm (sp?) that puts whatever is input as the name of the signer into the blanks on the document. Then, for whatever reason, there is no human intervention before the docs are issued. Therefore, if the signer is signing as trustee where necessary, that's what ends up in all the blanks.

This is an example of how speed hurts, and taking a few minutes to review can make a huge difference. There wouldn't be a need for "legal department" intervention if the notarial area was either left blank or was correctly designated as the signer as individual.

JMHO

Reply by GOLDGIRL/CA on 9/10/12 5:13pm
Msg #433809

So, I guess they won't be funding the loan. WF can't have it both ways. Their legal dept says you are attesting only to the individual, yet they have printed right after the individual's name that you are also attesting to their capacity as trustee....yet saying that you are not attesting to capacity. Huh?!

In any case, if this were me, I'd put this on the back burner and let them stew about it. Let them find another notary who'll play ball if that's what they want. (Which means u won't get paid, of course.) But that's just me. There may be other solutions out there, tho I surely don't know what.

I've done a gazillion cross outs on acks on this very wording and have never had anybody object. Besides, it's my belief that the ack is more or less none of their business. It's our domain and requires "approval" only from the county recorder, which if filed in CA, would not be acceptable if "trustee" were included in the verbiage. And if filed in aother state, we're still not allowed to certify capacity.

As far as I know, we have only one thing to do in CA re the ack/jurat and that's to identify the person in front of us, and ack that they signed as an individual. Period.

Reply by ReneeK_MI on 9/10/12 5:40pm
Msg #433812

For your cert, do "names, who presented themselves as the trustees of blah blah blah Trust"

Reply by LKT/CA on 9/10/12 7:33pm
Msg #433828

No Renee - only names and nothing else on the ack/jurat n/m

Reply by ReneeK_MI on 9/11/12 7:34am
Msg #433875

Sorry, gotcha - not for CA, and thanks for correction =) n/m

Reply by garland/CA on 9/10/12 5:42pm
Msg #433814

thanks, everyone...

I sent back an email to the SS telling them it is not within the jurisdiction of the bank to write on or add to my notarial certificate. I am the one who signs it and am ultimately responsible for what it says.
I can attach my own acknowledgment with just the individual names and write "see attached certificate" on theirs without filling it in or crossing anything out. Don't know if they will accept that or not. Likely it is someone in a department that doesn't understand the function/role of a notary and where our jurisdicition lies and theirs ends.

Reply by CopperheadVA on 9/10/12 7:44pm
Msg #433832

<< I called the SOS and they said they cannot interpret the handbook and I would have to seek legal counsel for that. >>

So frustrating! My SOS always gives me a "non-answer answer" as well. The SOS creates the handbook, holds you accountable to it, and they shoudl be able to answer questions! UGH!

Reply by garland/CA on 9/10/12 7:53pm
Msg #433834

they decided to "handle it from their end"

which may mean find a notary who will do it. I would think that means the DOT has to be re-executed by the borrowers (they signed every thing last week). As far as I know they don't even know about this. I was just there today for a second visit to have them sign a Certification of Trust that wasn't in the documents the first time around.

From all the reading I did in various places today regarding this, the over all opinion/interpretation seems to be California notaries are not to have any title or capacity after their name on the notary ackowledgement. This is the position I stuck with.
In the future, rather than cross out the capacity verbiage, I may just attach my own completed certificate and write "see attached notarial certificate" on theirs. That may satisfy their desire that it isn't crossed out. And I can still complete my certificate the way I believe it to be compliant to CA notary law.

It IS very frustrating the SOS cannot answer any questions about their own handbook. Who can? Seek legal counsel? Many attornies have no idea about notarial law.

Reply by garland/CA on 9/10/12 7:55pm
Msg #433835

meant to say "after the signer's name (not the notaries) n/m

Reply by JanetK_CA on 9/10/12 8:00pm
Msg #433836

Re: they decided to "handle it from their end"

I would have done the same thing - and will continue to do so. And I thought your response to them was a good one. If it was the correct CA verbiage for an all-purpose ack, as you know, we sign under penalty of perjury, too. Like the others said, they have no authority to dictate to us what should be filled into our notary certificate, especially from a different state.

After you said that they didn't include a Certification of Trust form, it sounded very much to me like they weren't used to dealing with trusts and didn't really know what they were doing, so I suppose it's possible that they figured out that you were right and they were wrong!

Reply by garland/CA on 9/10/12 8:43pm
Msg #433842

typo again: attorneys (not attornies!) n/m

Reply by Marian_in_CA on 9/11/12 12:52pm
Msg #433910

The first thing to know is that the Notarial certificate is YOUR domain and responsibility, not theirs. They cannot dictate to you how to fill it out. Only the state can do that.

Something I've found to be of a lot of use lately is the SOS approved (and authored) workbook/guidebook used for the education requirement. Those who teach the notary classes have to base their materials off of this document... of they can just use it as is. That means it's just as important as our handbooks, IMO, and offers a LOT more information about basic procedural stuff.

See: http://www.sos.ca.gov/business/notary/forms/notary-education-sample-workbook-2012.pdf

See pages 30-31, where they say the "name of the person" is entered there.


We can't determine or certify their representative capacity.... so you really can only put their names there. Determining their status is up to the courts, not us. We're only there to identify the individual.

If it were me, I'd tell them that I am the one signing that statement under penalty of perjury, a felony in California. Since I'm not allowed to determine or certify the capacity of a person, I will not let it be included in my certificates. They have ZERO right to tell me what to write on my notarial certificate. NONE.

Reply by Robert Williams on 9/11/12 7:22pm
Msg #433979

In Ohio, it is generally allowed to have a corporate title (or capacity) on the acknowledgement, such as:

State of…..................................
County of….................................

The foregoing instrument was acknowledged before me this (date) by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging) a (state or place of incorporation) corporation, on behalf of the corporation.

(Signature of person taking acknowledgment)
(Title or rank)
(Serial number, if any)”

I would think that every state must have some type of corporate ack format.... wouldn't a trustee be similar?