Posted by LndWelch/CA on 1/9/13 10:10pm
Msg #449713

Power of attorney and notary certificates

I've been presented with this issue:
John doe signed as POA for his wife Jane Doe. One of the documents in the loan package is a Signature Affidavit....one for John Doe and one for Jane Doe
I notarized the one for John, but did not do one for Jane. Now I'm being asked to have John Doe sign as he has , (Jane Doe by John Doe, Attorney in Fact), on the signature line for the wife and then put that complete sentence as the 'person' in the affidavit and notarize it.
I believe that the person has to be present for me to notarize their signature, and the only way I can complete the certificate is to just have John Doe's name.

Am I wrong? Did this make any sense???

Reply by Yoli/CA on 1/9/13 10:20pm
Msg #449714

<<I notarized the one for John, but did not do one for Jane. Now I'm being asked to have John Doe sign as he has , (Jane Doe by John Doe, Attorney in Fact), on the signature line for the wife and then put that complete sentence as the 'person' in the affidavit and notarize it.>>

Linda: If by the above you mean that you are being asked to put "Jane Doe by John Doe, Attorney in Fact" in your notarial certificate, then NO. As a California notary, you cannot do that. We are not permitted to certify capacity. The only name allowed in that certificate is that of the person in appearing before you and whom you have ID'd.

Reply by MikeC/TX on 1/9/13 10:24pm
Msg #449715

You can't do that - the husband may have POA and thus has the right to make decisions for her, but he cannot swear to what she knows to be true.

Reply by LndWelch/CA on 1/9/13 10:33pm
Msg #449716

Thank you for your responses. I have been arguing with Loan Depot regarding this, and have told them I will only do the following:

Line through the word 'affidavit' on the document and, since the AIF can't provide an oath on behalf of the Principal. attach a loose acknowledgement....with only John Doe's name.

This seem rather stupid...but they are being real PITA about this.

Reply by Marian_in_CA on 1/9/13 10:51pm
Msg #449719

Well, it's not that difficult. You tell them that it is CALIFORNIA LAW, and that you are not allowed to "determine or certify" capacity of the signer. In CA, we're only allowed to write the name of the person appearing before us, and no titles or capacities are allowed... at all. This is a big no-no, and the Sec of State could be all over you for it.

Now, as to the AIF swearing under oath? Well... I think it depends on the document. The OATH is simply the person swearing the truth of the content of a document. They aren't necessarily taking an oath on somebody else's behalf. Plus, as has been mentioned here before, we need to be careful about this because we are not allowed to make these kinds of determinations for people or make blanket legal statements outside of our notary laws. Doing so could get us in to some trouble if we start spouting things that aren't true or that could land us in court.



All you have to do is tell them this and send them a copy of the latest handbook for their review. You can download here: http://www.sos.ca.gov/business/notary/forms/notary-handbook-2013.pdf

Or tell them to call the Sec of State's office Notary Division directly (see below) and tell THEM what they want you to do. If they keep pushing it, then you tell them to look up Gov't Code 8225a:

"(a) Any person who solicits, coerces, or in any manner influences a notary public to perform
an improper notarial act knowing that act to be an improper notarial act, including any act
required of a notary public under Section 8206, shall be guilty of a misdemeanor"

That usually shuts them right up.

Bu, if they get really nutty about it... tell them to call the Sec of State's office.


Mailing address:

Business Programs Division
Notary Public Section
P.O. Box 942877
Sacramento, California 94277-0001

Location: 1500 – 11th Street
Sacramento, California 95814

(916) 653-3595

Website: www.sos.ca.gov/business/notary/

Reply by MikeC/TX on 1/9/13 11:51pm
Msg #449722

Not exactly

"Now, as to the AIF swearing under oath? Well... I think it depends on the document. The OATH is simply the person swearing the truth of the content of a document."

There's no "it depends on the document" in this case - you cannot swear to what someone else believes to be true, only to what YOU believe to be true.

If you want to take an oath that says you truly and honestly believe this person you're representing believes the contents of a document to be true, knock yourself out - it in no way binds them to that statement.

A POA allows you to make certain decisions for an individual; it does not give you the right to decide what they believe to be true or false.

Reply by Marian_in_CA on 1/10/13 12:11am
Msg #449725

Re: Not exactly

That's why I said it depends on the CONTENT of the document.

I've seen several of these affidavits reformatted/rewritten so that they are, in fact, the statement of the AIF and not the principle. IN those cases, it is perfectly acceptable for the AIF to swear to their knowledge of the facts since it is THEIR own statement.

All of the ones I've seen were done by local title companies that wrote out a custom statement for each specific circumstance and used in lieu of the standard identity statement.

Even with that... as notaries, it's not OUR job to enforce the legality of a document. That's up to the courts. A notarization has ZERO impact on the legality of a signature or a document. (Well, I can think of one unique exception to that rule in CA where a notarization alone is not enough for a document to be effective... but that's one of those rare exceptions.)

If somebody wants to swear to the truth of the contents of a document, that's what they do. Now, if their signature isn't valid or enforceable because it's not something a court can enforce, that's not the notary's problem. My point is that we need to be careful about telling people, "You can't do this." That's legal advice - and whether it's true or not, it's outside the realm of notary law, and we really don't have any business telling people these things outside of, "Have you spoken to an estate attorney about this?"

NOt sure about other states, but in CA, the contents of the document are pretty much none of our concern. That's why we're allowed to notarize signatures on documents in a foreign language without knowing what any of it really says.

Reply by ArtG/KS on 1/10/13 8:54am
Msg #449758

Re: Not exactly

Lets simplify this. It the POA "attorney in fact" signs it by his name as the attorney in fact, HE is the one swearing or affirming, not the person he represents or is signing for. The wording can get a bit tricky on this, but your are witnessing the person who is signing, not the person he is signing for.