Posted by Trina Flack on 3/4/13 3:48pm
Msg #459166

California Notary

I have a question. I work for a title company (not in California) and we hired a California notary to close a loan last Thursday. When the package came back the Notary wrote "see attached" on the notary acknowledgement on the Deed of trust/mortgage. There was nothing attached. The notary claimed it had to be there as it was stapled to the DOT/MTG. There were no Staple marks, it just was not in the package. I asked her to send a new one, and she claimed under CA law that she would have to have the borrower resign and notarize a new acknowledgement dated for current day. She said the other is back dating. I do not consider this back dating as this document never changed and we just didn't receive it. She already witnessed them sign it, I just need her notary acknowledgement. Can someone tell me what is legal and what is not in this case?

Reply by GOLDGIRL/CA on 3/4/13 4:29pm
Msg #459169

Re: California notary n/m

Reply by GOLDGIRL/CA on 3/4/13 4:56pm
Msg #459171

Woops! Previous post wasn't helpful. This one may not be either. That no staple marks appear on the DOT signature page indicates that the notary probably did not staple the ack to the document. However, she has to take your word for that. She also has to take your word that no ack was in the pkg. So it's your word against hers. And she cannot send you a "replacement" ack using the original date.

If you can convince her she didn't send one at all or she realizes she didn't, then she might try to figure out how to issue an original with the original signing date, tho frankly that's a stretch. CA law does not allow a notary to send an unattached, signed and sealed loose certificate to anybody for any reason that I know of, even notary error. Playing it by the book, she needs the original DOT to take back to the borrower, have them acknowledge that is indeed their signature(s) and issue a new ack dated for the date she returned. Or she needs to print out a new DOT, have them re-sign and issue a certificate dated the day of the re-sign. If, on the return trip, she dated the certificate for the day of the original signing, that would be backdating.

Still, even if you are right and she flubbed up, her hands are tied.

Reply by Denise Henschel on 3/4/13 7:21pm
Msg #459197

I haven’t looked it up in the California Law Primer but I don't see a problem with signing and stamping a new acknowledgement as she has all of the information in her Journal - the date, time, document, signer, etc and the signer does not have to sign the acknowledgement form. She isn't creating a new form just replacing the missing one.

I would also go through all of the documents in the loan package to make sure it is not behind another document and or ask the signing parties if they have a copy of the loan docs and if the acknowledgement is in their package.

Reply by Linda_H/FL on 3/4/13 7:49pm
Msg #459210

Denise, you don't believe the letter Marian posted from

your SOS?

I'm gonna go get some popcorn - I do believe I see a schooling a'coming..

Reply by Notarysigner on 3/4/13 8:19pm
Msg #459218

Ditto, double popcorn for me....hmmm Notary law primer..isn't that the first handout you get from the XXX? I don't think it's changed since 2007.

Reply by jba/fl on 3/4/13 8:27pm
Msg #459220

I think so - that useless piece of c..... n/m

Reply by Marian_in_CA on 3/4/13 9:18pm
Msg #459226

The Law Primer?

Ouch... the Law Primer isn't exactly the wisest reference material. It's kind of like citing Wikipedia on research paper.

This exact situation is why I wrote my letter to the CA Sec of State last year asking them to clarify their position on issuing replacement certificates. As you know (or SHOULD know) as of 1/1/12 we are supposed to staple loose certificates to the original document. You can't do that if you don't even have the document.

Also, sending a replacement certificate is a serious security issue for CA notaries. You need to have a journal entry that matches each notarial certificate. What if the requester is fibbing about them "losing" the certificate or it getting damaged? What if they're just trying to get an extra out of you? So, you blindly send them a "duplicate" and then, all of a sudden, that duplicate it attached to some random document for which you have no record. How do you explain that?

It's that, and other similar concerns that prompted my letter... and their response was clear enough to me. They do NOT want us doing it. That's why I post it here for people to see. If anyone doubts the authenticity of it, you can always call the Sec of State's office and ask them. They keep copies of those letters in our file, so I'm told. Everything you need to verify the letter is right there on the letter itself, including my name and business mailing address. It's all public information anyway.

Reply by Marian_in_CA on 3/4/13 4:57pm
Msg #459172

NO can do....

So Trina, per the CA Sec of State, we should NOT be sending replacement certificates, no matter how they were lost. It requires a new notarization all over again. This is backed in a letter that I have, personally, from them and have posted here before, wherein they state:

"If a notarial certificate is lost or damaged, a new notarial act... is required."

You're welcome to see the letter, in full, here: http://www.highdesertnotary.com/casosletter0912.pdf

Reply by Marian_in_CA on 3/4/13 5:01pm
Msg #459173

Re: NO can do....

BTW.... the borrower does not have to "resign" the document is it is an acknowledgment. All the notary (or any notary) would need to do is take the original document back to the borrowers and have the acknowledge that they did, in fact, sign it. No need for them to sign again.

The notarial certificate, though, would be dated for the day that they acknowledged their signature... NOT the day they signed it.

Reply by Marian_in_CA on 3/4/13 5:05pm
Msg #459174

Re: NO can do....

Oh man... I'm scatterbrained today. I also meant to say that the borrowers would, of course, sign the notary's journal and give them their thumbprint (required by CA for a DoT) and such because it is a new notarial act, but they would not have to re-sign the document itself... simply confirm that they signed it.

That's what I meant to say. I'll think I'll go take a much needed nap now!

Reply by Trina Flack on 3/12/13 10:29am
Msg #460723

Thanks for all your help