Posted by Marian_in_CA on 2/7/13 2:42pm
Msg #454564

I'm going to rain on the CA notary parade again...

This is in reference to Msg #454396 where many suggested send in both and acknowledgment and a jurat. I've always felt uncomfortable with that advice, and me...being the way I am.... spent the time on hold today and spoke with the CA Sec of State's office today and they told me that's NOT OKAY. We should only be attaching one certificate per document/signature. It can be multiple certificates for different people (such as for split signings), but NOT both an acknowledgment and a jurat for the same signature. They said, similar to what I did, that it's a security issue and any notary doing that is putting their commission at risk.

The point is... we need to determine what they really want and provide it. They did point out that our handbook states that any incorrect wording can give us a clue. If it includes "subscribed and sworn" it calls for a jurat.

And, me...being the way I am....will follow up with the letter like I did last year about the duplicate certificate thing. They said that was fine and they'd be happy to provide a written response like last time.

I'm a trouble maker, I know.

Reply by BrendaTx on 2/7/13 3:18pm
Msg #454570

I would said, okay, but if they want both, it should not be denied. There are reasons for two.

What would be wrong with both on one page?

Reply by Notarysigner on 2/7/13 3:27pm
Msg #454572

Thanks once again for the research and clarification Marian.

I have seen wording for an Ack and Jurat, separated on a single sheet, which to me would mean one of each. I don'[t think it would hurt to call and find out just what is it they want. IMO

Reply by Marian_in_CA on 2/7/13 3:28pm
Msg #454573

That's a good question... if both were on ONE page, that's interesting.

I think the big issue is that for one, the notary is signing under penalty of perjury that the person is acknowledging their signature and claimed capacity. The other, it's the signer swearing/affirming.

I have to wonder, though...why would one want both?

Reply by BrendaTx on 2/7/13 5:35pm
Msg #454608

Marian - why both.

Sometimes an affidavit with a jurat goes to be recorded. When that happens, the process goes smoother for the one recording if it also has an ack on it. Affidavits are often drafted in Texas with two certificates on one page.

Notaries should not overrule an attorney's drafting of a form/document of this nature by making a person select one or the other. Persons must be allowed to choose both if they desire.

Choosing the wrong certificate causes problems. That's why some attorneys use two on a document. The affidavit must be sworn to, but the recorder looks for an acknowledgment.

http://www.zlien.com/blog/acknowledgment-error-invalidates-rhode-island-mechanics-lien/

Reply by Marian_in_CA on 2/7/13 5:59pm
Msg #454616

Re: Marian - why both.

That is interesting... because it does seem that a lot of the time when we see these it comes from Texas.

I know that CA law says that recorders (and anyone else) must accept out of state notarizations as valid as long as hey were completed in compliance with the law of the venue where is was performed. Seems to me that others states must do that same... they can't tell notaries in another state to do something outside of their state's law or notary guidelines.

All the same, I think what the SOS's office was saying is that we aren't allowed to determine the certificate. We have to let the signer or document recipient/requester figure that out. It's our job to know and explain the differences and let them decide. I've never been comfortable with the idea of doing both. I mean, that's two different notarial acts anyway...on one signature. It just doesn't make sense to me.

All of those stories about recorders getting upset aren't the fault of the notary, though. If they can only choose one... they can only choose one. I realize that might make that difficult for some people, but again... they can't exactly force an out of state notary do to something against the law, especially a CA notary... where it's a crime to even knowingly ask.

It's an interesting question, though. Before I write my letter, I'll add this information as an example and send some samples that I've been sent in the past, so they can see what I'm referring to. My "letter" will be more like small folder with reference documents. I think it's important to present that varying sides.

Reply by VT_Syrup on 2/7/13 6:08pm
Msg #454619

Re: Marian - why both.

The case BrendaTX linked to was a case of a court deciding that when an oath was required, an acknowledgement wouldn't do the job. I've found cases that were the other way around (unfortunately I didn't write down the details, because it wasn't what I was researching). Someone took an oath instead of acknowledging a mortgage. The court decided that since it wasn't acknowledged, it shouldn't have been recorded. If I remember correctly, the homeowner defaulted on the mortgage and went bankrupt. The bankruptcy trustee claimed that since the mortgage shouldn't have been recorded, it didn't count as far as the bankruptcy trustee was concerned, so the trustee could foreclose and divide up the money among all the creditors, not just the lender on the mortgage. The court agreed.

Neither case addresses the issue of a document that is both acknowledged and sworn to.

Reply by BrendaTx on 2/7/13 7:18pm
Msg #454643

My attorney explained this to me.

My SoS said that there is no law against it. They agreed that we should not presume to know more than a lawyer on cases of legal documents. And, they also say to call an attorney to find out more. My attorney agreed that there is no law against it in Texas.

Texas AG has ruled that the recorder must accept a a properly notarized document, certificate is not their problem. Nonetheless, it's a problem to many recorders.

The point of me posting in this thread is not to argue, but to encourage people to think and make calls before assuming that because it is a certain way in Ca. according to the person who answers the phone on a day in 2012, it may not be the same in 2015.

ASK ASK ASK questions and get answers in writing. Do as told by someone of authority.

Reply by Marian_in_CA on 2/7/13 7:53pm
Msg #454649

Re: My attorney explained this to me.

"Texas AG has ruled that the recorder must accept a a properly notarized document, certificate is not their problem. Nonetheless, it's a problem to many recorders."

That seems to be fairly universal... county clerks/recorders seem to think they have their own rules or laws and like to make life difficult for people.

Maybe I have a little bit of bitter taste in my mouth still left from Harris County (Texas) clerk officials who made our lives a complete nightmare for over a year over a most ridiculous matter regarding the transfer of a vehicle title in an estate. They absolutely would not accept a notarized affidavit. They had to see my husband, in person with his ID. An out of state, duly commissioned notary verifying his ID was not "good enough" for them. Oh no, they insisted my disabled husband travel haflways across the country to show them his ID to prove who he was. No local attorney would work as AIF... nope. We tried that, too. I mean, really... the courts didn't even require his presence at the probate and estate hearing .... the the lowly county clerk was digging in heels and absolutely would NOT issue a new registration or title unless he showed up, in person.

We spoke to several attorneys who all said we had to go through the county.... until one guy said, "Nah... forget that. Write a letter to the state and send them $5 to get a duplicate title. THen, take the duplicate and the estate paperwork to your DMV and they'll take care of it. Problem solved." Indeed, problem solved. $5 whole dollars.

Reply by BrendaTx on 2/7/13 9:33pm
Msg #454686

Re: My attorney explained this to me.

* They had to see my husband, in person with his ID. An out of state, duly commissioned notary verifying his ID was not "good enough" for them. Oh no, they insisted my disabled husband travel haflways across the country to show them his ID to prove who he was. No local attorney would work as AIF... nope. We tried that, too. I mean, really... the courts didn't even require his presence at the probate and estate hearing .... the the lowly county clerk was digging in heels and absolutely would NOT issue a new registration or title unless he showed up, in person.*

If this had been a Texan, it would have been the same on the car title in the tax office...I went around, around, around, and around, with the titling of decedents vehicles via local tax offices when I was a legal assistant. But, THEN, I realized that the state office in Waco would be a quicker route. 90 miles there, instant success. And, like you said, by mail worked, too.

Reply by Pro Mobile Notary on 2/7/13 3:39pm
Msg #454574

We get into this situation often with out of state docs.

When asked we counsel NSAs (when we cannot get in touch with escrow or lender) to read the language on the page. If the sentence in question begins with "acknowledged" we advise our signers to use an acknowledgement even if it is followed immediately by the words "subscribed and sworn."

We have NEVER had one rejected by escrow, the lender or the local recorder.

Reply by Marian_in_CA on 2/7/13 3:48pm
Msg #454576

I think that most of the time, people don't care about the difference between the two... and that includes lenders and even county recorders. All they really look for is a notary seal and signature and some kind of "official"sounding wording that goes with it. To them, it all sounds like a bunch of legal garbage.

The thing is, in California, that statutory wording is written in the the law for a very specific reason and it's mainly for the protection of the notary.

Plus, as many of us know... especially in CA... a lot of the notarial certificates are written in million of different ways and really confusing, often saying different things. As annoying as CA can be with the regulation.... the requisite wording is actually a good thing because it keeps our duties pretty clearly defined.

Reply by BrendaTx on 2/7/13 5:36pm
Msg #454609

**I think that most of the time, people don't care about the difference between the two... and that includes lenders and even county recorders. **

I have to disagree...there has been an AG opinion on this b/c Texas recorders are sticklers.

Reply by CarolF/NC on 2/7/13 3:47pm
Msg #454575

Good for you Marian. Hope you PM the original poster. Again

all of us out of staters should have stayed out of the post.

Reply by pat/WA on 2/7/13 3:51pm
Msg #454578

I am in Washingrton

when I have a Jurat and an Acknowledgment on the same document I only complete one. Usually the acknowledgment
No one has ever complained

Reply by MikeC/TX on 2/7/13 6:13pm
Msg #454621

Re: I am in Washingrton

"when I have a Jurat and an Acknowledgment on the same document I only complete one. Usually the acknowledgment"

If the signer tells you which one to use, that's fine. If YOU are making that decision, it's UPL - you cannot make the choice for them.

Unless state law says that you can only have either an acknowledgment or a jurat on a document, there's nothing wrong with providing both. And if your state law does require one or the other, you should contact the party who produced the document and ask which form they require. This is not a decision you are authorized to make on your own.

Reply by GOLDGIRL/CA on 2/7/13 3:50pm
Msg #454577

Actually, sounds OK to me just cos it is sorta weird providing both, even if you do write "this certificate attached to blah blah blah" with all a description of the doc (2x). It does seem that for now, do a jurat - cos that more or less covers both and indicates signer took at oath, too. (For those notaries who actually do an oath). Be prepared for lender pushback even though it's unlikely because, as I opined earlier, most of the receiving agencies don't know the difference between an ack and jurat and wouldn't be able to pick one over the other. Just as long as something stamped comes backwith the doc, all's good.

Anyway, I don't think the SOS really thought this out. Anything out of the box, they freak. Nowhere does code prohibit double certs; the subject is not included in any approved-vendor teaching materials as far as I know; and the SOS has never issued a regulation concerning it. I think it's hogwash for the SOS to say a notary who does this is guilty of a security issue. It's not my job to protect my certificates once they're in the lender's/TC's hands as long as they have been properly filled out, properly anotated and properly stapled. The security risk comes when the receiving agency misuses properly executed certificates. That's like saying I'm responsible for someone robbing me cos I was carrying money; I know, I asked for it. JMHO

HOWEVER, I have an Old Republic Title "Power of Attorney and Correction Agreement" in a loan pkg I'm doing today that actually has both an ack AND jurat with the signer's preprinted name on both! It's quite clear they want both filled out. What to do?
Refer ORT to your post?
Call ORT now and tell them to pick one?
Have the borrower sign twice? (Actually I like that idea; if it's one certificate for one signature, then I've got two signatures!).

Reply by Marian_in_CA on 2/7/13 3:59pm
Msg #454583

"Anyway, I don't think the SOS really thought this out."


That may be part of it... or just that maybe nobody's bothered to bring it up to them.

I swear, I wish I could drive up there and spend about a week at their office with a notebook full of nit-picky questions and sit down with some of them and just ask questions like chatty 7 year old.

It's one thing to try to make our own interpretations of what they put out or obtain legal advice... but then there's some things that really should come from their office because it's a matter of procedure.

Reply by sueharke on 2/7/13 4:06pm
Msg #454586

In May I am more than willing to sit in the SOS office and be the inquisitive 7 year old as I live in Sacramento. I don't think the agency will accept it though....

Reply by SuzieQ/CA on 2/7/13 4:13pm
Msg #454590

Hi everyone. I was the original poster. Thanks Marian for the research. I'm worried now as I attached both.

What I don't get though is why on some documents the wordings for the acknowledgement and jurat is correct (meaning California compliant wording) but on others they are incorrect, in the same set of docs? Why do they have one set of documents with so many variations of the wording?

Reply by GOLDGIRL/CA on 2/7/13 4:30pm
Msg #454599

I wouldn't worry about this too much at this point, SuzieQ. A few veteran notaries posted yesterday they've done the same thing, and so far Joan and Janet (nor I) are in jail!

There is no official written ruling yet - Marian just only called the SOS, and evidently caught them by surprise. At this point, we all need to decide for ourselves what to do or first/best choice, as we said yesterday, let the hiring party decide ... if you can get ahold of them.

As to the answers to your remaining questions; consult a ouija board. I hear there's an online version; you just use your mouse to divine the correct answer. (Then let us all know what you find out!).

Reply by SuzieQ/CA on 2/7/13 4:49pm
Msg #454604

Thanks Goldgirl!

Reply by Marian_in_CA on 2/7/13 4:54pm
Msg #454605

Yes, as GG said... it would seem that the SOS's office seemed surprised by my question. We had quite a conversation about it. I think it's just one of those things that nobody's bothered to ask them before.

If it were an opinion type of thing, I probably wouldn't bother asking, but since this is more procedural and deasl with the issuance of certificates, I think it's definitely something that they have jurisdiction over...hence my asking.


Ultimately, though, they definitely welcomed a written request for this to be clarified if anyone wants it. I intend to followup. They suggested email for a speedier response, but I prefer to get a written opinion on Sec of State letterhead. It's slower, but more effective.

Reply by JanetK_CA on 2/7/13 11:54pm
Msg #454696

"If it were an opinion type of thing, I probably wouldn't bother asking, but since this is more procedural and deasl with the issuance of certificates, I think it's definitely something that they have jurisdiction over...hence my asking."

I tend to disagree with this. All our requirements are set by law that is created by the state legislature, not the SOS office. I'm surprised that they're even getting into these kinds of interpretations these days because in years past, the most common response I got to a variety of questions was to refer me to a section of code and then advise that they can't interpret the law, that I should seek the advice of an attorney. (I doubt those folks answering the phones in the SOS office are attorneys.)

When it comes to interpreting the law, there are an infinite number of potentially different circumstances that we can run into - especially when it comes to dealing with documents, properties, and signers from different states. I don't think it should be necessary to require a ruling on every possibility. At some point, I believe we have to be able to apply some common sense and personal judgment. Trying to get them to make a legal interpretation or judgment on every possibility to me feels like micromanaging, and at some point, I believe that can hurt more than it helps.

I may see this differently tomorrow 'cause I'm dead tired, but it's something that I've thought about before, so who knows.

Reply by linda/ca on 2/8/13 12:18am
Msg #454702

Amen to that Janet/Ca...

"I don't think it should be necessary to require a ruling on every possibility. At some point, I believe we have to be able to apply some common sense and personal judgment. Trying to get them to make a legal interpretation or judgment on every possibility to me feels like micromanaging, and at some point, I believe that can hurt more than it helps."

Janet, This cannot be said enough! Too bad some people have so much time on their hands that they ask for more and more guidance that becomes more of an obstacle for most folks rather than beneficial. That is not the road we want to take....(getting the SOS more involved).

As the saying goes....be careful what you ask for!

Reply by Marian_in_CA on 2/7/13 4:14pm
Msg #454592

I've always wondered if it were organized well enough, if they'd do a question/answer seminar for notaries and not just education vendors or at organized events like NNA conferences.

If they did, I'd totally drive up there for it.

Reply by GOLDGIRL/CA on 2/7/13 4:40pm
Msg #454601

Good idea, Marian

The SOS has no idea what we as loan signers go through with lender/TC docs. Either they don't want to know, or they think one size fits all. Only when faced with huge problems do they react. How many years did it take for them to finally come up with the staple rule? Or the rule about "feathering" docs and stamping?

NSAs do not operate like the notary in the little postal shop around the corner. I've read where other states' SOS offices have held video conferences. One would think our SOS would be interested in the concerns of working notaries, but apparently not. They're too busy drafting endless disciplinary regulations and figuring out ways to commission convicted felons, as fa ras I can tell.

Reply by linda/ca on 2/7/13 11:45pm
Msg #454695

Don't we already have enough rules in California? n/m

Reply by Marian_in_CA on 2/8/13 2:05am
Msg #454704

Re: Don't we already have enough rules in California?

I don't think it's about asking for more rules as much as it's clarifying their expectations of rules they've already established, or that are rather "widely" interpreted.

Take, for example the whole one line issue. For many, this is pretty cut and dry...for others not so much. I happen to think that the SOS has been pretty clear in their expectations, and yet some people still manage to find a way to interpret it in a way t o make it more convenient for them to work. Now, I can totally appreciate that.... because, let's face it... it's darn annoying and time consuming writing in all that redundant information. But you know what? I also see the reason for it, so I do it.

If I had the chance, you bet I would sit down and ask them specifics about their expectations. It's not about what *I* want to hear... I want to know their expectations so I don't get hit with a fine or some other disciplinary action if something goes awry.

One of the big problems is that they publish a lot of vague information, and yet they still, apparently, have specific expectations. I learned this after talking with one of their office's investigators. She wasn't calling about anything I did, but was following up on a complaint my husband filed against another notary. It was quite eye opening.

Reply by JanetK_CA on 2/7/13 11:27pm
Msg #454692

"It does seem that for now, do a jurat - cos that more or less covers both and indicates signer took at oath, too."

Based on Brenda's posts above - and other things I've read in the past - I don't think that's a safe assumption. I think this is why there is such a thing as UPL. We don't have the training to know all the implications and that's why we shouldn't be making those decisions.

"Anyway, I don't think the SOS really thought this out. Anything out of the box, they freak."

That may be a bit of an overstatement, but I think you have a real valid point. If we step back and try to look at the world of notaries from their perspective, I suspect that most of their activity involves much more basic stuff. It's astonishing how little some notaries know. I've run into two recently who I think must have slept through the training. How they passed their exam, I have no idea - or maybe they just forgot EVERYTHING by the time they got their commission. Frightening!

Reply by Marian_in_CA on 2/7/13 11:39pm
Msg #454694

Janet, I'm thinking it's a little bit of both. Given how much time there is bewtween the time new notaries take their exams and the time they receive their commission packets, there are months of down time where they just forget everything they may have learned.

I also think that at some level some notaries just assume they know everything and don't bother consulting with their regulatory source. I cannot begin to tell you how many notaries I've met who have been notaries for 15-20+ years and still have no clue that they can download the updated manual and newsletter on the state's website...OR that there are any updated laws or changes. They just go by what they are told every 4 years in their seminar course and rely on that for 4 years. Sad.

Reply by Stephanie Santiago on 2/7/13 4:13pm
Msg #454591

Re: I'm going to rain...and the sun just came out :-) n/m

Reply by Shan/CA on 2/7/13 8:02pm
Msg #454650

I for one appreciate your trouble! You are very informed, and as a newbie, I look for all the help I can get here! I did a signing 2 weeks ago, a California Co., and ALL of the wording was wrong on both the acks and jurats. I couldn't get ahold of anyone, so I attached loose certs for every single one. I think it ended up being 8! There were 2 signers. Thanks!

Reply by C. Rivera Chicago Notary Services on 2/8/13 9:16am
Msg #454720

Very good on your part Marian. Excellent work. n/m