Posted by Yoli/CA on 1/27/13 8:48pm
Msg #452580
What would you do? n/m
| Reply by Linda_H/FL on 1/27/13 8:51pm
Msg #452581
I would read your post in full, Yoli, and would give it my
heartfelt consideration....
Soon as you share.. 
| Reply by GOLDGIRL/CA on 1/27/13 9:06pm
Msg #452585
I'd make a Kaluha coffee with a big dollop of whipped cream
and a sprinkling of nutmeg and get ready for tonight's "Downton Abbey" episode. Everything else can wait, Yoli!
| Reply by JanetK_CA on 1/27/13 9:18pm
Msg #452587
Thanks for the reminder! :>) n/m
| Reply by BrendaTx on 1/27/13 9:23pm
Msg #452588
I will have to catch DA on the 'net.
Darn! I forgot. Love the replays on the web, though.
| Reply by Marian_in_CA on 1/28/13 12:15pm
Msg #452686
Re: I will have to catch DA on the 'net.
Ugh... I've already seen this entire season including the Christmas special thanks to a friend of mine from the UK.
Great season.... but I am keeping my mouth SHUT. Although at this point, the spoilers are pretty much out there anyway given that the entire thing has already aired in the UK.
| Reply by Susan Fischer on 1/27/13 9:04pm
Msg #452583
Beleive I would do IT, as long as I get to choose it. n/m
| Reply by Yoli/CA on 1/27/13 9:05pm
Msg #452584
Re: What would you do? Oops, try again ...
Had a signing this evening. When I accepted job, I was told borrowers were in my area on holiday. Property is in SoCal. Finally made contact yesterday. Mr. requested Sunday evening as wife would be home from work then. Huh?? Went to their apartment. They've been living here for 6 months. They live here, work here, kids go to school here. When they started refi process, they were still in SoCal so paperwork has remained as such and their LO, who's their friend, is aware of all this.
As it all turned out, they didn't sign 'cuz HUD had them getting back several thousand less than what they expected, Settlement Statement they were sent is different than what's in pkg, they now feel lender is charging excessively and finally, because the friend the LO didn't return call within 15 minutes. They hope to get things clarified by tomorrow and will call me back.
I've notified SS so they can pass info to Title. As I mentioned to SS, this may have an impact on loan terms. Moreover, what if it's decided to proceed as is? How can they "swear/affirm to" on Occupancy Affidavit? And, if they proceed in that fashion, and knowing what I know, does their perjury extend to me? At this moment in time, my gut's telling me don't do it -- and, it's a big gut so I usually listen  .
By the way, besides being a nurse and tax-preparer, Mr. is also a California notary. Interestingly enough, he said he was a notary in Southern California and was asking me if he can "be a notary in Northern California." I had to fight the urge to slap him upside the head as I informed him he's commissioned for the entire State. I didn't ask but I wonder if he's a product of NNA ....
| Reply by CarolF/NC on 1/27/13 9:24pm
Msg #452589
Don't know answer, but Stoli and I on phone LOBO at NNA ref
erence. In NC the answer would be yes you would be and could not notarize. Stoli waiting for CA answer.
| Reply by JanetK_CA on 1/27/13 9:32pm
Msg #452590
Re: What would you do? Oops, try again ...
Yoli, over the years, I've met lots of people - nurses in particular - who work on a contract basis and can spend months at a time working in different locations from what they consider their primary residence. From a legal standpoint, I have no idea what is right or wrong in that type of a situation and won't speculate, but as we know so well, there is often much more to a story than meets the eye.
IMO, you've already done the responsible thing by passing on what you heard, and beyond that I really don't think there's anything else you can do. I don't see it as up to us to get involved in deciding if this signing should proceed or not based on their questionable residency. One last thought... Since you have no way of knowing if your message to the ss will ever get to the tc, you could always add a note with the docs back to title. I suspect, though, that if you were originally told they were there on holiday, they are probably already in the know on whatever their circumstances might be. But it couldn't hurt.
PS. RE: their potential perjury, you're simply administering the oath and notarizing their signature. Just by way of comparison, if a court witness lies on the stand, I don't think the person who swore them in would be complicit. That's how I see it anyway.
| Reply by Bear900/CA on 1/27/13 9:47pm
Msg #452591
Re: What would you do? Oops, try again ...
You absolutely cannot sign now that you know there is an indication of fraud involved. In fact it appears there may be fraud on both sides of the transaction.
Aug 13, 2012 was a deadline for all loan originators to be trained, tested and certified under the Financial Crimes Enforcement Network’s policies (FinCen). Typically, a SARS (Suspicious Activity Report) would be filed for a much smaller infraction.
The whole process is indicative of Big Brother, and the times we are living in. Basically, you have to rat out your neighbor even if you just have a suspicion, and you cannot inform them. If you don’t, then you are liable.
It will be coming our way, sorry, as soon as they find a way to implement it.
Suggested starting point.
http://www.ffiec.gov/bsa_aml_infobase/documents/FinCEN_DOCs/SAR_TTI_16.pdf
| Reply by jba/fl on 1/27/13 10:24pm
Msg #452594
I would take GG's advice and have a nice sit-down with DA
and enjoy the rest of the evening. You have done your duty.
It may be that TC was not informed of the move, and now informed, will pull some of the TC docs and replace with those fitting of the situation. Since the LO knows, the BO's didn't appear to be trying to hide anything, there just may be no attempt or hint of fraud at all.
I agree a revisit is in order.
| Reply by 101livescan on 1/27/13 10:21pm
Msg #452593
Re: What would you do? Oops, try again ...
Samuel Clemens said once "When in doubt, tell the truth."
But, what is the truth, hard to know what to do here, Yoli. I don't know what I would do...
if you don't do it, someone else will likely do it instead.
| Reply by VT_Syrup on 1/27/13 10:36pm
Msg #452599
Re: What would you do? Oops, try again ...
Looking at a typical occupancy affidavit, it uses an undefined term, "principal residence". I don't know exactly what that means. If I knew the property was rented to someone else for a long time and there was a plan to keep renting it for a long time, I'd be very suspicious. If I knew the borrowers had registered to vote in some city other than where the property is, I'd be very suspicious. But just living away from home for some period of time that I don't know much about, without knowing what is going on in the property, I'd only be a little suspicious.
A typical occupancy affidavit also says the borrower doesn't have to start living in the property for 60 days after the signing, and even then, can get written permission to live somewhere else from the lender. So if I don't know the borrower's plans for the next 60 days, and don't know if permission has been granted to live somewhere else, I really wouldn't know that something is wrong.
| Reply by Malbrough_LA on 1/27/13 10:49pm
Msg #452602
Issue for me?
"...what if it's decided to proceed as is? How can they "swear/affirm to" on Occupancy Affidavit? And, if they proceed in that fashion, and knowing what I know, does their perjury extend to me? At this moment in time, my gut's telling me don't do it -- and, it's a big gut so I usually listen"
Regardless of gut size (though I appreciate the humor ), for me you hit the nail on the head. Do they occupy the property currently? No. Can they attest to that fact? Not without perjury of statement. Can you sign off on their signatures attesting to as such? Depends...How good is your lawyer? What they attest to is what you are affirming and subscribing they affirmed to. Do you really want to go there? I would, but I've got a lawyer on retainer for free to CMA. Unless you have someone willing to go to bat for you to CYA, listen to that big gut of yours and feed it more turkey. (I mean this as a non-judgmental statement; I LOVE turkey!)
| Reply by CarolF/NC on 1/27/13 11:02pm
Msg #452605
Suppose you could try and rationalize that you
Don't really know if it's fraud or not because you don't have all the information as others have pointed out. But if you know it's fraud could you notarize a fraudulent statement? Does this differ by state? I hope you clarify with your SOS and post back here.
| Reply by jba/fl on 1/27/13 11:21pm
Msg #452608
Why would she rationalize? n/m
| Reply by Malbrough_LA on 1/28/13 12:39am
Msg #452610
Re: Suppose you could try and rationalize that you
I've checked with my SoS on numerous issues. Would you like to know their answer? VERBATIM: "We cannot regulate what a Louisiana Notary does or does not do." This is precisely why I retained my lawyer. Thankfully we're good childhood friends, so he charges me nothing. But, as I've said, I've signed my soul to him once law school is complete. (And I'm required to buy beers for advice even though I'm sober 12 years and counting)...
| Reply by ReneeK_MI on 1/28/13 5:25am
Msg #452618
Re: What would you do? Oops, try again ...
IMO, too much conversation has already taken place and if I'm a freak about anything, it's my own risk. To me, it's not worth $XXX to risk being accused of collusion in a world as litigious as the one we live in. This is just another one of those situations where people tell us things we can't un-know, despite our desire to have never been told in the first place.
There could be a hundred ways this situation is not fraud - but that would require even MORE conversation I have no desire to have.
| Reply by Julie/MI on 1/28/13 7:19am
Msg #452620
We are not conscience police
If someone lies it's their problem, we are not there to shake down those that lie.
Just like the court clerks that swear in people giving testamony in courts everyday, if they see something contrary in a hallway before court and then swear the person in and they lie, it's not up to the court clerk to sidebar the judge.
| Reply by Malbrough_LA on 1/27/13 10:41pm
Msg #452601
The tango and never ask her name for culpability reasons? n/m
| Reply by Bear900/CA on 1/28/13 12:37am
Msg #452609
Sorry to have hammered so hard on this one,
I know that rarely goes over.
A little about me: I am a mortgage broker, recently served as a chapter president of our state mortgage association for several years, recently served on our state executive committee as vice president of education, and have assembled a number of educational and compliance events. I have hosted top compliance instructors from several states, and recently the Western Regional Director of the CFPB.
I live pretty much in the eye of the tornado of sweeping changes in the mortgage industry and am a resource for many who know me. I laugh when some call me “a machine”. Don’t know what they mean….
I do remember the subprime days as a LO when most notably it was realtors who owned 10 or 12 “owner occupied” rental homes. Benefits were lower interest rates, higher LTV, etc. These loans were most effectively made with the same LO who was a “friend”.
“they were still in SoCal so paperwork has remained as such and “their LO, who's their friend” (quotes inserted), is aware of all this.”
Maybe things like this jump out at me faster than for others because of seeing it firsthand. My very first loan was to a realtor who said he was moving in and never did. The seller was “a friend”. I got a call from the bank asking why the original owner was still living there. Yes, they checked.
Here’s a well thought out article:
http://library.hsh.com/articles/homeowners-repeat-buyers/occupancy-fraud-risks-not-worth-the-rewards.html
The CFPB is currently starting a database with every loan origination made by every MLO and all parties involved. I would take measures to stay off their future radar. Is it worth $XXX?
| Reply by Brenda Stone on 1/28/13 5:20am
Msg #452617
Re: Sorry to have hammered so hard on this one,
Great info in both sources you shared.
Too many rules and laws...not enough enforcement.
| Reply by Yoli/CA on 1/28/13 10:02am
Msg #452650
Monday morning update ...
Late last night, received call from borrowers. Mr. has spoken to his friend, the LO, who (from his commission) will refund him the funds (several thousand) he was expecting in the HUD. No new HUD & Settlement Statement. Re-scheduled for 6 pm tonight.
Slept on it. Took everyone's opinion into consideration -- thank you all.
My decision: This MAY be a train wreck waiting to happen.
1. In my opinion and with the facts at my disposal, the LO and borrowers are in collusion.
2. In good conscience, I cannot swear/affirm the borrowers on the Occupancy Affidavit or that they will occupy within 60 days.
3. If oral agreement between the LO and borrowers regarding the additional funds does not happen and the borrowers decide to take their buddy to court over those funds, I do NOT want to be a part of that.
I've already notified SS about all this. Told them if this signing is proceeding with present docs and terms, they need to find another notary. They'll let me know after they talk to escrow officer of final determination.
| Reply by CarolF/NC on 1/28/13 10:06am
Msg #452651
Sounds Like A Very Good Decision n/m
| Reply by Malbrough_LA on 1/28/13 10:07am
Msg #452653
Re: Monday morning update ...
I think that's a good way to proceed, honestly. I double checked my Notarial Law and Practice book for Louisiana and it states as follows (the heading of this section is under 'Affidavits'):
"The affiant makes the declaration or statement under oath and is therefore subject to penalties for perjury or false swearing.
The notary or other officer is not attesting to the accuracy or truthfulness of the statement the affiant makes. He is only attesting to the fact that the affiant was placed under oath and that the affiant swore or affirmed under oath that the statement given was true."
| Reply by Yoli/CA on 1/28/13 10:48am
Msg #452663
From the CA Handbook, Government Code section:
§ 8214.1. Grounds for refusal, revocation or suspension of commission
The Secretary of State may refuse to appoint any person as notary public or may revoke or
suspend the commission of any notary public upon any of the following grounds:
(i) Commission of any act involving dishonesty, fraud, or deceit with the intent to
substantially benefit the notary public or another, or substantially injure another.
(l) Execution of any certificate as a notary public containing a statement known to the notary
public to be false.
§ 8214.15. Civil penalties
(a) In addition to any commissioning or disciplinary sanction, a violation of subdivision (f),
(i), (l), (m), or (p) of Section 8214.1 is punishable by a civil penalty not to exceed one thousand
five hundred dollars ($1,500).
§ 8214.2. Fraud relating to deed of trust; single-family residence; felony
(a) A notary public who knowingly and willfully with intent to defraud performs any notarial
act in relation to a deed of trust on real property consisting of a single-family residence
containing not more than four dwelling units, with knowledge that the deed of trust contains
any false statements or is forged, in whole or in part, is guilty of a felony.
(breathing a sigh of relief; I'm in compliance)
| Reply by Marian_in_CA on 1/28/13 11:13am
Msg #452676
Re: From the CA Handbook, Government Code section:
That's the deed, though... weren't you talking about the occupancy affidavit? Those are two different things.
Does the deed contain occupancy language?
If it does, THEN I can see compliance based on the fact that the deed is likely acknowledged... not done under oath. Since our acks are done under PoP, *if* there is language in the deed tying it to occupancy, then I think you've got them.
I'm just tossing this out for discussion more than anything, not argument... I'd be seriously uncomfortable with the situation as well.
| Reply by Yoli/CA on 1/28/13 11:44am
Msg #452681
Re: From the CA Handbook, Government Code section:
From the Deed of Trust:
6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal residence
within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's
principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which
consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's
control.
Looking thru docs, I don't see a written consent. I suppose it could've been given outside of escrow.
| Reply by Marian_in_CA on 1/28/13 11:55am
Msg #452682
Re: From the CA Handbook, Government Code section:
Eeeps... yeah, there are a couple of loopholes there, especially about extenuating circumstances and such. I mean, that starts getting in to things where you don't want to pry, you know? There's just too much you don't know and the Occupancy exception seems to be something that can be granted just about any time. So, if they swear today that they intend to move within 60 days, and actually mean it... they might mean it. But what if their situation changes? That's something between them and their lender it would seem.
You don't want to put yourself in a position where they think you're accusing them of something. Your gut may very well be spot on... but, sadly, here in CA we don't have the same provisions of refusal written in to our laws like the Florida notaries do, for example. We have to tread more carefully.
Yeah... if it were me, I'd do what I noted in the other message... show the hiring party, and the borrowers prior to taking their oath the penal code tidbit and then let them decide.
If you're really uncomfortable doing it (and I don't blame you!) I'd just be sure to have a scheduling conflict...
| Reply by VT_Syrup on 1/28/13 12:14pm
Msg #452684
Re: From the CA Handbook, Government Code section:
Notaries may be required to act in some states, but I don't know of any state that requires a notary to travel to the would-be signer's location. For most of us, who have no scheduled office hours, it's debatable whether we would ever have to "open" our "office" if the signer was willing to travel to us.
| Reply by Marian_in_CA on 1/28/13 12:56pm
Msg #452695
Re: From the CA Handbook, Government Code section:
Oh heavens... no. We're not required to travel to anyone. In fact, there are *SOME* notaries who are well within their rights to refuse notarizations because on their employment status. For example, a notary who is working at a bank is allowed to refuse a request if that employer doesn't allow their employees to notarize anything except certain bank-related documents in the course of their employment.
Where it gets tricky is for those of us who are independent or self-employed notaries. Of course, outside of regular business hours and such we can refuse. All of that isn't an issue at all. But if we are presented an otherwise lawful request within the normal course of our business dealings...that's where we can't just refuse.
Here's an example of something I can refuse. In CA, our home addresses are public information, sadly. Anyone can call up the Secretary of State and get our home address. They can come knocking on our door and request a notarization. Now, I have every right to refuse them... because zoning laws in my city forbid public foot traffic to my home office. I'm not allowed to post signs or advertise on my home that I'm a notary nor do I have posted hours. If they need help, they can call and make an appointment fr me to come to them.
The real issue is refusing based on comfort level or other factors... in California that's more dicey. We're only told that we can't refuse a lawful request, which means that if all factors are otherwise in place... such as proper ID, etc. if we THEN refuse we better have a darn good reason. Of course, the majority of the public doesn't know this and doesn't know to distinguish if the notary is right or wrong or to even complaint to the Sec of State about it. So, a lot of notaries get away with refusing work that ,honestly, they shouldn't be doing... I hear stories all the time from people who say they'd been turned away from notaries for all kinds of crazy reasons. These people had no clue they had the right to complain or that the Notary was likely in the wrong.
Last week I notarized some domestic partnership paperwork for same sex couple who told me that they found me online after a certain notary turned them away because she, "Doesn't notarize anything that she's morally opposed to." She told the couple that if she put her signature and seal on that paper it would be as if she were approving the situation... and other similar comments.
That made me so angry. When I met with them, I personally handed them a copy of the Secretary of State's complaint form and told them to send it in. I also researched the details on the notary that turned them away and gave them her commission information for the complaint.
My personal and moral beliefs have absolutely nothing to do with the responsibility to notarize somebody's signature. I've notarized TONS of documents for things that make my skin crawl... but you know what? It's not my business... I'm not there as the moral or money police. I'm there to verify signatures, not approve the content or legitimize the situation.
| Reply by VT_Syrup on 1/28/13 2:03pm
Msg #452714
Re: From the CA Handbook, Government Code section:
I just hope I don't get any requests to notarize applications to open a marijuana dispensary. Legal under state law, illegal under federal law. Good grief.
And I agree that discriminating on the basis of any status that is protected by law, such as race, religion, or sexual orientation would be both illegal and suggest that the notary really isn't the sort of person who should have a government position.
| Reply by JanetK_CA on 1/28/13 1:55pm
Msg #452711
Re: From the CA Handbook, Government Code section:
I think you would be in compliance, regardless, Yoli.
"§ 8214.1. Grounds for refusal, revocation or suspension of commission
The Secretary of State may refuse to appoint any person as notary public or may revoke or
suspend the commission of any notary public upon any of the following grounds:
(i) Commission of any act involving dishonesty, fraud, or deceit with the intent to
substantially benefit the notary public or another, or substantially injure another.
(l) Execution of any certificate as a notary public containing a statement known to the notary
public to be false."
Under (i), you aren't trying to do anything for your own benefit or to deceive or injure another.
Under (l), they're referring to the statements in your notary certificate, which I'm sure would be accurate. (This would cover something like backdating.)
Bottom line, though, is that this is your decision and you should go with whatever will make you feel the most confident and able to sleep well at night.
| Reply by Marian_in_CA on 1/28/13 11:06am
Msg #452669
Re: Monday morning update ...
That's true.... when it comes to oaths/affirmations, the notary is simply attesting to the fact that the person swore/affirmed to the facts contained in the document. Our jurats are not signed under penalty of perjury like our acknowledgments are.
I've seen situation like the one she described, where a family was temporarily relocated for a variety of reasons - renovations or repair, health treatments, temporary job assignments, etc. I don't see it as my job to pry in to that and start asking questions. However, we still have to be cautious and aware without stepping in to the realm of "I've determined you're doing something illegal even though I don't know it for sure." You need to have some something to back it up....something seriously solid.
What *I* would do in this case... is point out my concerns to the hiring company as well as point out page 46 of our current handbook, which quotes CA penal codes 115.5:
"§ 115.5. Filing false or forged documents relating to single-family residences;
punishment; false statement to notary public
(a) Every person who files any false or forged document or instrument with the county
recorder which affects title to, places an encumbrance on, or places an interest secured by a
mortgage or deed of trust on, real property consisting of a single-family residence containing
not more than four dwelling units, with knowledge that the document is false or forged, is
punishable, in addition to any other punishment, by a fine not exceeding seventy-five thousand
dollars ($75,000).
(b) Every person who makes a false sworn statement to a notary public, with knowledge
that the statement is false, to induce the notary public to perform an improper notarial act
on an instrument or document affecting title to, or placing an encumbrance on, real property
consisting of a single-family residence containing not more than four dwelling units is guilty
of a felony."
TO me... the responsibility here is on the people signing the documents and taking the oath... that's the whole reason we issue that oath. But that's just my take on it.
Now, if this were an acknowledgment we were talking about, my view would be entirely different... but if this is an affidavit wherein the signers are the ones under oath -- they're ones who should be made aware of the potential consequences of their actions.
I'm not saying it's wrong of Yolanda to turn this back... if she's not comfortable, she's not comfortable... but if it were me, I'd whip out the code first from the handbook and point it out saying, "Okay, now that you've read that and you understand you're under oath, do you want to proceed?"
| Reply by Malbrough_LA on 1/28/13 11:16am
Msg #452678
Agree
"I'm not saying it's wrong of Yolanda to turn this back... if she's not comfortable, she's not comfortable... but if it were me, I'd whip out the code first from the handbook and point it out saying, "Okay, now that you've read that and you understand you're under oath, do you want to proceed?"
That's how I'd proceed and what I was trying to allude to earlier; however, I think my comments may have been misconstrued by others. Oh well. It's not that big of an issue to me
I do second that if something doesn't feel right, generally do not proceed. Having said that, I'd still proceed with this one after I put client, SS, and Lender on notice regarding the code as Marian has just said. The key is the final question/sentence for me. Email paper trail for the win.
| Reply by Yoli/CA on 1/28/13 12:27pm
Msg #452689
Final disposition from SS to EO:
After sending SS the various CA notary Handbook citings:
"EO",
See below from my notary Yolanda. Because this is a delicate situation, I will not have a notary from "SS" take care of this. I will send you the cancellation fee later today to pay my notary on this file.
| Reply by Marian_in_CA on 1/28/13 12:34pm
Msg #452691
Re: Final disposition from SS to EO:
That sounds good... let the Signing Service handle it. Sounds like they had your back... that's good to hear of a signing service! There are a few great ones out there still.
| Reply by Bear900/CA on 1/28/13 2:49pm
Msg #452732
Re: Final disposition from SS to EO:
Hi Yolanda, I have a question regarding you post below from the SS:
“I will send you the cancellation fee later today to pay my notary on this file.”
Are they charging you a cancellation fee? I hope I’m reading this wrong or don’t understand the wording.
Regarding anti-discrimination laws, I’m hoping you pros can help me on this. I am not aware that refusing a signing is discriminating. Is that the common belief here?
In my world as a broker, discrimination can start with refusing to take an application, much less the redlining and steering.
But I have no problem refusing a notary based on any reason. Am I out of line?
Back to your signing however, you can most definitely discriminate and not be penalized and here is why for the benefit of all in attendance.
Thank you for adding this statement:
“Late last night, received call from borrowers. Mr. has spoken to his friend, the LO, who (from his commission) will refund him the funds (several thousand) he was expecting in the HUD. No new HUD & Settlement Statement.”
For all here, it is illegal for any loan officer give money back to the customer. This sort of loan officer, and customer, are what put us all in the drink to start with. The LO should be reported to the DRE and the AG’s office. I’m not saying YOU should do that, it’s not your job to police the matter.
I’m just providing you the status of the situation. Criminal activity is something you have every right to steer clear of now that it is pointed out to you.
LO’s were disallowed to pay ANY of the customer’s costs including lock extensions, appraisal fees, credit reports, etc., although many still do. The CFPB is reversing some of this rigidity as they finally recognized the unintended consequences to the borrower. NAMB, NAR and other associations battled hard to get some of this back.
Refunding money from his commission however is so far outside the law it’s hard to put in writing here.
Thanks for sharing this for the benefit of all.
| Reply by Yoli/CA on 1/28/13 4:45pm
Msg #452772
Bear, to answer your question
I charged a print and trip fee and SS is passing that charge on to escrow.
Thank you so much for the rest of your post. Everyone's knowledge and experience brings so much to this forum.
| Reply by VT_Syrup on 1/29/13 8:55am
Msg #452871
Discrimination
Bear900/CA ased "I’m hoping you pros can help me on this. I am not aware that refusing a signing is discriminating. Is that the common belief here? In my world as a broker, discrimination can start with refusing to take an application, much less the redlining and steering."
"But I have no problem refusing a notary based on any reason. Am I out of line?"
Part of my notary oath says "You do solemnly swear that you will faithfully execute the office of notary public for the county of ________ and will therein do equal right and justice to all persons...." I take that to mean I can refuse to act due to circumstances (ID isn't good enough, I'm busy doing something else, I'm not being offered enough $ to drive 15 miles) or to the client's conduct with me (hostile to the point I wonder about my safety) but not due to some personal characteristic or protected choice of the person (race, religion, sexual preference, political party). Of course, it would be hard for anyone to gather enough information to detect a pattern of discrimination based on any improper basis, but *I* would know.
| Reply by Bear900/CA on 1/29/13 11:25am
Msg #452901
Re: Discrimination
Thank you for pointing that out.
What you have clearly defined is a moral conscience based on ethics and largely “the golden rule”, which is commonly used as a standard in real estate transactions, and SHOULD be used in notarial work.
I should quickly point out when I said “any reason”, I meant any reason against my personal ethics and comfort zone which would include a good conscience not just law.
CA notary law does not get specific about discrimination, in fact doesn’t address it at all or you would have tons of comments here.
That doesn’t rule out good ethics. There are too many blogs and associations like the NNA spelling out what we are and are not. Only the state determines that. But if you want to use a blog here is what one said:
Typically a notary public is required:
1) To deter fraud
2) To ensure a document is executed properly
The case on this thread is a matter of “comfort of conscience” based on what she saw and heard. That was a good call because in the end it did turned out to be fraud. As many pointed out she could have gone either way with that. If she becomes aware of criminal intent then the issue goes to another level.
Anti-discrimination on the other hand is based on law and there are a number of them in place to protect consumers. In CA most of these are tied to The Unruh Civil Rights Act.
Please follow this line of thought:
The Unruh Act also brings the Congressional American Disabilities Act to the state level (which is stricter) and requires “reasonable accommodation” for disabled persons to public places. Ask any restaurateur in CA who doesn’t have these and they will tell you they WILL be shut down.
Let’s apply this to independent self-employed notary. Are there areas where we purposely and other areas where we inadvertently discriminate.
We all discriminate to get the price we demand and I think that’s why my question has been met largely with silence. Money over conscience? Shame on us…
What if the poor person was disabled and could not pay? I think we would all do the right thing.
CA ruling has been made that if your employer pays for your notary they can, for reasonable cause, restrict you to using it for work related purposes only, such as at a bank or car dealership. Is that discrimination for good cause OUTSIDE of conscience and ethics?
Sum up: Do you have reasonable cause to reject a notarization, counter to some arguments that we are forced to or else we are discriminating?
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