Posted by notarydi/CA on 3/15/13 10:22pm
Msg #461477
help from Texas....
borrs are here in CA. Texas property/Texas docs/Rental property. Docs are drawn John Adam A. Doe. Driver's License is John Adam Doe. He does have very expired passport as John Adam A. Doe. In CA, I can only write my acknowledgement/jurat as John Adam Doe, as that is all he has current photo i.d. as. If I have him sign as docs are drawn (John Adam A. Doe), and only write my acknowledgement/jurat as John Adam Doe, will that fly in Texas?
| Reply by notarydi/CA on 3/15/13 10:28pm
Msg #461478
also, no one told these people they had to come in with $$ to close. Can't tell you how many signings this week I have had that no one had gone over closing numbers with people. So, we're holding off signing to resolve i.d. and funds to close issue. Trying to find two credible witnesses. Of course, rate expires Monday. Wife had knit cap on as she just recently lost all her hair due to cancer and chemo. young woman. just needed to vent about no one going over closing numbers with people......
| Reply by Linda_H/FL on 3/15/13 10:37pm
Msg #461480
Re: help from Texas....tip from FL :)
If they have current valid ID in their possession, I don't think you can use CW's.
| Reply by Marian_in_CA on 3/16/13 2:45am
Msg #461509
Re: help from Texas....tip from FL :)
It's not up to the notary to decide if the person can or cannot use credible witnesses. I believe that the idea that a person has ID means no CWs is actually a common misconception. Just because one has ID doesn't mean they don't fit the profile for CWs.
The oath for using CWs in California is based on the oath of the witness...NOT the notary. The CW must swear to the following:
1. The individual appearing before the notary public as the signer of the document is the person named in the document;
2. The credible witness personally knows the signer;
3. The credible witness reasonably believes that the circumstances of the signer are such that it would be very difficult or impossible for the signer to obtain another form of identification;
4. The signer does not possess any of the identification documents authorized by law to establish the signer’s identity; and
5. The credible witness does not have a financial interest and is not named in the document signed.
#4 does not simply say that the signer lacks identification. It says that they lack identification that can be used to establish their identity. There's a difference.
Also, the "very difficult or impossible" bit in #3 is not up to the notary to decide. It is the CW swearing to that information, not the notary. What we may consider difficult or impossible may not be to somebody else. And, it's really none of our business to go nosing in to their business as to why. There could be TONS of reasons why, some of which they do not necessarily want to divulge. I've mentioned this before... but it's a good example. A woman came to me with expired ID. She was perfectly capable of obtaining proper ID , but (and this was explained to me ahead of time by her attorney) if she went to the DMV to do it, she would have been arrested because she had an outstanding warrant. She was trying to have paperwork notarized before turning herself in and was trying to settle affairs first because she knew once she turned herself in, it would be a big mess without the paperwork in place first.
The only reason I knew her situation was because her attorney called me first, after having been turned away by several other notaries who outright told the woman she needed to go to the DMV because credible witnesses could not be used in her case because she *had* ID and could *obtain* valid ID, but chose not to. I disagree... I believe her situation perfectly fit the use of CWs... and the attorney made sure they had two lined up and swore to the 5 elements under oath. I was more than comfortable with that.
Some notaries will say, "Well I can't give a CW oath if I know that it isn't difficult or impossible and I think the witness is lying." I think that's more opinion rather absolute knowledge of a witness lying. Why? Because the witness only needs to swear that they *reasonably believe* it to be true. How does the notary know if they're actually lying or not? Unless the notary has absolute proof of that... for example, they learn that the chosen witness is just a casual acquaintance or neighbor and wouldn't have knowledge of the signer's circumstances... that's one thing. But to say, "Nope... you've got ID you can't use credible witnesses...get your lazy bum to the DMV...." Yeah, not good practice, IMO because we simply aren't knowledgeable of the full picture. That's why it's up to the CW to swear to those things... not the notary...since it's the CW who knows the person well and knows the situation far better than the notary.
| Reply by Linda_H/FL on 3/16/13 8:16am
Msg #461514
You'll pardon me for disputing you Marian but your own
handbook says the following:
"oath of a single credible witness whom the notary public personally knows. (Civil Code
section 1185(b)(1)) The notary public must establish the identity of the credible witness by
the presentation of paper identification documents as set forth above. Under oath, the credible witness must swear or affirm that each of the following is true (Civil Code section 1185(b)(1)(A)(i)-(v)):
4. The signer does not possess any of the identification documents authorized by law to
establish the signer’s identity; and..."
Same for use of two credible witnesses.
So, I fail to see how anyone with current valid ID can use CW's.
JMHO
| Reply by Linda_H/FL on 3/16/13 8:33am
Msg #461515
To clarify
Two CW's do not need to be known to the notary
| Reply by Marian_in_CA on 3/16/13 12:45pm
Msg #461563
Re: You'll pardon me for disputing you Marian but your own
Linda, that's my exact point, actually. It says:
"The signer does not possess any of the identification documents authorized by law to establish the signer’s identity;"
I beleive that a lot of people read the first part of that and, ni their minds, connect it to meaning, "No ID" -- but that' not what its' saying. It's saying the the person lacks ID that is authorized by CA law to establish their identity for notarization purposes. If the ID they have is expired or doesn't fit the authorized list, then...technically speaking, they *MAY* consider the use of credible witnesses. HOWEVER... it's the witness who swears to those facts, NOT the notary. This means the signer is now simply using CWs as their ID.
Now, once we have that....the notary has to use the satisfactory evidence rule with this:
"'Satisfactory Evidence' means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the individual is not the individual he or she claims to be..."
Using the CWs as ID, if the notary THEN feels the person is not who they claim to be using that definition, they could turn down the job... credible witnesses or not. It's all in how you approach it. Just like telling somebody with dementia we don't think they're competent to sign? NO.... we can't do that. We can, however, say we can't do it because we can't communicate directly with the signer.
My whole point is that CWs are simply another form of ID, and to reject is valid form of ID (acceptable for notarization purposes), simply because WE don't approve of it could, potentially, get us in to trouble. Obviously there are a lot of steps to using CWs where it could fall apart and not be a valid form of ID.
What I'm saying here is that we should focus on the satisfactory evidence rule rather than the specific form of ID being used. That way, we have an "out" that can be backed up with the written rules. When it comes to that requirement about 'not possessing any of the identification documents authorized by law to establish the signer’s identity' -- again, that's NOT the notary's call. Nor is it the notary's call to determine if obtaining proper ID is "difficult or impossible" -- those things are sworn to by the credible witness.
Once you have those witnesses sworn in and you have the ID... the notary can THEN come in and apply the satisfactory evidence rule.... and then use THAT as a reason to use or not use the CWs as ID.
My point is that I cringe when I hear of notaries say, "They have a valid ID... but it doesn't match the documents... so they need to go and get their ID fixed." What if the documents are wrong? And again... we get in to the idea of name matching... there is NO law that says names must match. It all goes back to the Satisfactory evidence rule.
| Reply by Marian_in_CA on 3/16/13 2:23am
Msg #461508
OKay... let's take this bit by bit... I realize this is all my own opinion here and some people look at it differently.
"borrs are here in CA. Texas property/Texas docs/Rental property."
The location of the property doesn't matter. You're both in California, the notarization should follow California law.
"Docs are drawn John Adam A. Doe. Driver's License is John Adam Doe."
Okay... and? I realize that this is a point of contention and debate... but I say, go by the satisfactory evidence rule. There is NO legal requirement that the name on the document match the name on the ID. For acknowledgments (and only acknowledgments) you are only required to be "satisfied" that the person named in the document is the one signing. Nowhere are we told that names have to match. Remember, the satisfactory evidence rule states, "“Satisfactory Evidence” means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the individual is not the individual he or she claims to be..." (see page 8 of the current handbook).
"He does have very expired passport as John Adam A. Doe."
Doesn't matter. It's expired. You can't use it.
"In CA, I can only write my acknowledgement/jurat as John Adam Doe, as that is all he has current photo i.d. as."
Well, that's not an actual requirement, either. Although that's what *I* do... and I believe it to be best practice, it's not specifically required. There are many CA notaries who match the name on the document to the name on the notarial certificate, no matter what the name on the ID reads because they feel that names must match. Personally, I don't. I write the name on the ID because that is the person in front of me. I use the satisfactory evidence rule for those times when names don't match.
"If I have him sign as docs are drawn (John Adam A. Doe), and only write my acknowledgement/jurat as John Adam Doe, will that fly in Texas?"
I don't know that it's a "Texas" issue at all. You need to follow CA law in completing your notarizations. Forget about where the documents are going, it's irrelevant really.
| Reply by BrendaTx on 3/16/13 10:31am
Msg #461531
Re: help from Texas....In this case
You do whatever you would do in CA.
(If it is a HELOC - that works differently....this is obviously not a HELOC.)
| Reply by VT_Syrup on 3/16/13 11:53am
Msg #461557
Re: help from Texas....In this case
Perhaps the original poster wants to know if having John Adam A. Doe in the docs, and as the handwritten signature, but John Adam Doe on the notarial certificate, will cause the recorder, title co., or lender to reject the document. If that were the case, the borrower could pursue other options, such as finding a notary who interprets CA requirements differently, or maybe driving over to Nevada where the rules are different. Or maybe they could find a judge, lawyer, or some other official who feels more comfortable interpreting the law.
| Reply by LKT/CA on 3/16/13 10:40am
Msg #461534
<<< But to say, "Nope... you've got ID you can't use credible witnesses...get your lazy bum to the DMV....">>>
LOL...yep...99.999999% that's the reason the person doesn't have ID - laziness OR they have racked up tickets or other penalties on the DL record and have to pay up before the DMV will renew their ID/DL and they don't have the money. THEIR problem, not mine.
| Reply by FormerEO on 3/16/13 12:21pm
Msg #461559
CA rules are quite specific in this matter.
If the ID says John Adam and the docs say John A. there is no problem in notarizing his signature as John A.,just as pre-printed on the docs.
In CA the signature block can have a shorter or truncated version of the name, but not a longer version, i.e. if the ID said John A. and the signature block said John Adam, you would not be able to notarize the John Adam signature.
| Reply by Marian_in_CA on 3/16/13 12:27pm
Msg #461562
"In CA the signature block can have a shorter or truncated version of the name, but not a longer version"
Where is that written?
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