Posted by NCLisa on 12/17/13 8:35am
Msg #496339

CA Ack - Penalty of Perjury for NC Notaries

Under the North Carolina state laws no acknowledgment should include the language Penalty of Perjury and if the acknowledgment is pre-printed it should be marked through and initial the change or choose a North Carolina acknowledgment to attach to the document.

If you have further questions, please advise.

Thanks

Judy Fulmore

Customer Service
NC Secretary of State
PO Box 29626
Raleigh, NC 27626-0626
919-807-2219 fax 919-807-2210
[e-mail address]

Reply by MW/VA on 12/17/13 8:40am
Msg #496340

Good info. Hugh had posted a while back that no one

should sign that "Penalty of Perjury" statement. CA's notaries have to, of course.

Reply by Notarysigner on 12/17/13 9:19am
Msg #496341

Seems to have something to do with the word "swear". I found this, Thanks Linda because I have been looking for a handbook which I couldn't find.

§ 10B-3. Definitions.
The following definitions apply in this Chapter:
(1) Acknowledgment. – A notarial act in which a notary certifies that at a single time and place all of the following occurred:
a. An individual appeared in person before the notary and presented a record.
b. The individual was personally known to the notary or identified by the notary through satisfactory evidence.
c. The individual did either of the following:
i. Indicated to the notary that the signature on the record was the individual's signature.
ii. Signed the record while in the physical presence of the notary and while being personally observed signing the record by the notary.
(2) Affirmation. – A notarial act which is legally equivalent to an oath and in which a notary certifies that at a single time and place all of the following occurred:
a. An individual appeared in person before the notary.
b. The individual was personally known to the notary or identified by the notary through satisfactory evidence.
c. The individual made a vow of truthfulness on penalty of perjury, based on personal honor and without invoking a deity or using any form of the word "swear".

Reply by C. Rivera Chicago Notary Services on 12/17/13 10:33am
Msg #496344

Penalty of Perjury...I see this alot with federal forms

which do not require a notary signature / stamp.

Reply by Marian_in_CA on 12/17/13 10:58am
Msg #496347

I find it humorous that people get upset over this clause. Obviously, in other states, you guys should all be using yoru own state's approved wording, if there is one. Now, this is coming from a CA notary perspective, but I honestly think that people don't fully realize that it's not all that big of a deal. In reality, the PoP clause is in place to protect the CA notary, not punish or threaten them. That's why CA is so strict about the wording used. To vary from that wording leaves us vulnerable. That's why I kind of like how strict it is here... it makes my job pretty easy in a black and white kind of way. I don't have to worry about odd certificate wording and what, exactly, I'm certifying.

Yes, signing things under the Penalty of Perjury is a big deal, that's not really what I mean. It's the full context.

First, we're all sworn public officials anyway. We're already under oath to perform our duties.

Second, in the CA acknowledgment wording, the Penalty of Perjury clause simply means that the notary is swearing to the facts noted in the wording of the paragraph above... that:

1) The person X appeared before them
2) person X claims to have the authority to sign the document and is doing so under that authority
3) Person X supplied identification, approved by state law, that satisfactorily proved that they are, in fact, person X

Nowhere is the notary actually certifying that Person X actually is any of these things... only that they DID certain things in front of them, and the notary is a witness to that persons' actions or claims. It's a very specific distinction here.

So, let's say that Person X didn't actually appear. Well, now the notary has committed perjury and needs to be worried. Let's say that the notary accepted ID that wasn't on the approved list to satisfy identity. Whoops...that's where perjury comes in , too.

Frankly, I'd be more worried about signing an acknowledgment certificate, even without the PoP clause that doesn't include these caveats, such as the signer making the claim of capacity. It seems to me that opens you up to more liability than signing one with the clause and all of the protections included. Of course, that only applies to CA since most other states don't have specifically prescribed wording or such strict rules about its' use. For example, how about one that looks like this:

"The foregoing instrument was acknowledge before my this (date) by Jane Doe as attorney in fact on behalf of John Doe."

First... obviously, this involves capacity, which is totally illegal in CA, but not most other states. As a notary in another state, I'd be super uncomfortable with this wording. Why? Because what legal authority do I have to affirm that Jane Doe is the AIF for John Doe? Even if she handed me paperwork, that would be making a pretty significant legal decision that makes me, personally, feel far more vulnerable than signing the prescribe PoP wording stating that in, did, in fact, do my job.

Reply by desktopfull on 12/17/13 1:17pm
Msg #496375

It is a big deal when you place yourself under the authority

of a State that number one didn't issue your commission and number two you don't reside in the State. You would be a fool to sign such a statement. Replace with your own state approved acknowledgements, etc. Not giving legal advise, just passing on what my attorney (my brother, now a judge) told me.

Reply by Marian_in_CA on 12/17/13 1:48pm
Msg #496380

Re: It is a big deal when you place yourself under the authority

Why would anyone sign a notarial certificate under Penalty of perjury in CA when they aren't in CA? It's one thing to sign under PoP, but to leave in the reference to CA is just silly.

Reply by desktopfull on 12/17/13 3:42pm
Msg #496399

I lost a client because they insisted that I use the CA ack.

They would not accept the approve Florida loose acknowledgement. They said that the recording office kicked back the acknowledgement because it wasn't a CA approved acknowledgement. I knew that this wasn't true because they called the day they received the package from Fed EX. I told them that I wasn't commissioned in CA and that I would not sign an acknowledgement giving CA jurisdiction over me, a non-resident. I tried to explain to them that I was required to meet Florida's notary public laws, which the acknowledgement did and even reminded them that CA accepted out of state notarization forms signed by out of state notary public's to no avail.

They said that other notary's in Florida signed the CA acknowledgement and that it was no big deal. I told them to contact one of those notary's to resign the package then. And yes, I've spoken with several notary's in this area that believe that this is no big deal, I just hope that they never have to find out what a "big deal" it is in the future.

Reply by Marian_in_CA on 12/17/13 4:06pm
Msg #496401

Re: I lost a client because they insisted that I use the CA ack.

Well, that's not a very good client if they were asking you to break the law. Anyone telling you, "Well other notaries do it..." should be a big neon warning sign to get away....fast.

CA law is clear -- country clerks/recorders must accept properly executed notarial acts from out of state.

CA Civil Code 1189a2b: "Any certificate of acknowledgment taken in another place shall be sufficient in this state
if it is taken in accordance with the laws of the place where the acknowledgment is made."

Source: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1180-1207

If I were in this situation, I would have simply referenced them to CA law and told them the issue isn't your problem. They needed to take it up with the recorder that supposedly rejected the document.

Reply by JanetK_CA on 12/17/13 5:27pm
Msg #496418

I agree, Marian, but you kind of slid by one of the most critical elements that we are certifying when we sign a notary acknowledgment: the date that all those 3 actions you listed took place. You were probably thinking that that was a no-brainer (which it should be), but I feel it's important enough to deserve special mention.

Aside from the obvious fact that backdating is the wrong thing to do, we have strong ammunition against anyone trying to intimidate us into backdating when we have to place our signature on a certificate that says we are committing perjury if we put an incorrect date on it.

Reply by LKT/CA on 12/17/13 7:46pm
Msg #496435

I agree with Marian - what's the big deal?

If your state allows you to complete a notarial cert on a doc headed for another state, and that notarial wording is compliant for that other state then if it also has a P.O.P. clause, just ensure that you are certifying under penalty of perjury under the laws of YOUR state. This way, you're subject to reprimand and sanctions if you've violated YOUR state's notarial laws. If you've notarized correctly and lawfully, you have nothing to be concerned about.

Reply by VT_Syrup on 12/17/13 8:25pm
Msg #496438

VT SOS office also frowns on penalty of perjury clause

I sent Kathy Watters, who is in charge of the notary public section of the Vermont SOS office, a copy of a certificate I was asked to use that was the same as the CA certificate, except "Vermont" replaced "California" in the perjury clause. Her response was, in relevant part:

"The sentence [the perjury clause] you are referring to is definitely out of place in an acknowledgement. The acknowledgement language prior to that is not exactly typical either."

Reply by NCLisa on 12/17/13 10:05pm
Msg #496444

I have always crossed out that Penalty of Perjury sentence

The reason I got this in writing from our SOS is I had a "new" client call me and give me a song and dance that Orange county CA would reject any ack without that language. I told the SOS that the EO was full of it, he said she'd been in the business for 25 years (as long as me) and she knew what she was talking about. I told him to look up 3 Orange county DOT's that were recorded that I'd notarized in his county in the last month that had no issues with that sentence being crossed out. He again gave me a song and dance....so when I emailed him that message from our SOS, he never called back to ask for anything else.

Really...I'm an idiot? I've been and EO in CA and a RE Paralegal in NC for 25 years now....I DO HAVE A CLUE!

Reply by JanetK_CA on 12/19/13 2:25am
Msg #496588

Acknowledgments by notaries outside of CA for CA properties

Well, I live in Orange County, CA and it wouldn't surprise me if a clerk in one of our Recorder's offices rejected it in error, out of knee-jerk reaction to all the incorrect notary certificates they probably still frequently receive from California notaries, based on work I've seen. They probably missed the fact that the notarization was conducted in another state.

If you run into this (and you're not a CA notary - if you are, shame on you!), let your client know that this is a very common mistake and suggest that they (or the tc, if it's a ss) remind the person in the Recorder's Office that you are from a different state, and that they should accept that acknowledgment as is, assuming it meets YOUR state's notary requirements. (This should be as valid for any California County.)

Here's the CA Civil Code section you can cite: 1189(a)(2)(b), which states:
"Any certificate of acknowledgment taken in another place shall be sufficient in this state
if it is taken in accordance with the laws of the place where the acknowledgment is made."

I should probably add that I'm not familiar with county recording requirements in other counties, but the above statement is from state law, which I would think would supercede any individual county requirements. I imagine someone will correct me, if I'm wrong about this.