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jbelmont
California
3106 Posts |
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PWinFL
Florida
469 Posts |
 Posted - 11/01/2009 : 05:00:16 AM
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The Florida SOS office also has emphatically stated (and published in the Governor's Reference Manual for Notaries, pg 42) that a Notary Public is personally liable for their actions. However, if the notary is acting for a company as an employee where the notarial act is a part of their job, then the company as well as the notary may be held liable for any actions brought against the notary in the performance of their job. (See Florida Statutes §117.05(6))
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida,
and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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jbelmont
California
3106 Posts |
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BobbiCT
Connecticut
135 Posts |
Posted - 04/16/2007 : 01:35:42 AM
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...sign up for a LLC as I have a lot to lose in the event someone thinks I have abused my office concerning the ID issue ...
When you create your LLC, check with your attorney regarding protection against "liability as a public official." I don't believe your LLC will offer any protection to you as a notary PUBLIC; i.e., your notarization blocks come under your actions as a public official commissioned by your state - NOT as a private business. Not following your state laws regarding identification is "official misconduct," which if proven is probably not going to be covered under your E&O policy either. The LLC may provide some protection for your actions as an "indepedendent contractor signing agent."
Just a personal viewpoint. Check this out with YOUR STATE officials and a good business planning/entity creation attorney.
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Edited by - BobbiCT on 04/16/2007 01:36:25 AM |
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snoopdogMs
Mississippi
21 Posts |
Posted - 03/25/2007 : 8:18:31 PM
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| Thanks Linda for replying. The code also reads "A notary who fails to perform notarial acts in accordance with the law may be sued for damages caused by his or her official misconduct". I could just see a lawyer questioning me on the witness stand asking me could I not have discerned with a high degree of care that Jane D. was Jane F..In this case I would have had to say yes. Bingo! Better have some good insurance. Today I am going to sign up for a LLC as I have a lot to lose in the event someone thinks I have abused my office concerning the ID issue. Why don't the Lenders require the borrowers to send them a photo copy as part of the loan process to get a head start on this problem? Then as notaries we can check the license for tampering as the Lender would not be able to detect that on their copy. Sure would solve a lot of headaches. |
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LindaH
Florida
1754 Posts |
Posted - 03/25/2007 : 09:37:21 AM
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Snoop - this is from the MS notary handbook:
"Before performing a notarial act, a notary must be certain of
the identity of each person whose signature will be notarized. A
notary should exercise a high degree of care in determining the
identity of any person whose identity is the subject of the
notarial act. A notary must never accept any signature as
genuine based on the word of a third party."
Your handbook is very vague as to what is acceptable as far as ID is concerned - so only you will know if you've exercised "a high degree of care" in making that identification - I guess that's your reasonable reliance.
Linda |
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snoopdogMs
Mississippi
21 Posts |
Posted - 03/25/2007 : 07:15:08 AM
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| Linda, I failed to answer your question directly. There were bills and a copy of her real estate license on the wall. But the content of the previous post tell the rest of the story concerning an imposter in Jane F's office. |
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snoopdogMs
Mississippi
21 Posts |
Posted - 03/25/2007 : 07:08:53 AM
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Good question. The picture and description (Jane D.Doe) on the license matches that person sitting in front of me who has documents readily at her disposal, found in different places that have Jane F. on them. If she is not Jane F., then this moment has been staged, documents stolen and Jane F. is tied up somewhere in the back because we are in the office where Jane F. is the owner and operator within this office. This closing also required the husband, who arriving with 2 kids, would also be an imposter. A lot of crimes would have to occur if Jane D. is not Jane F.. Even if I walked out without closing, I would have to call the cops because someone is impostering Jane F. in her work domain. What is reasonable reliance?
I want to get to the bottom of what my job as a notary is. I agree with Joe Ewing that if I don't have the faculties to make a proper assessment in various circumstances then maybe I don't need to be a Notary. I think the Notary should look at much evidence if a current ID has a name problem that is not blaringly obvious that fraud is not being attempted. Then if I conclude based on reasonable evidence,that Jane D. is Jane K. then I will call the Lender and let them make the final call. For the time being I go by the black and white rule until I can find a satisfactory definition of reasonable reliance. What are the allowable perimenters that fall within this definition if there is a photo ID that creates a question? And as posed in the previous post, if someones license expires the day before the closing, how does this change their identity and please don't answer with the pat answer of not being current. This question is from a practical standpoint. I am still Jane Doe March 25 even though my license expired yesterday as Jane Doe. |
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LindaH
Florida
1754 Posts |
Posted - 03/25/2007 : 04:59:26 AM
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I guess my first question is "What proof did you have (besides bills) that Jane D. Doe = Jane F. Doe.
Linda |
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snoopdogMs
Mississippi
21 Posts |
Posted - 03/25/2007 : 03:34:36 AM
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| I figured out how to change the post. Now that the name issue is remedied I hope someone will reply. I know that the simplest answer around the ID is to refuse if the picture ID has an initial or other differentiation. Are we not allowed to use "reasonable reliance" if there is enough evidence to support their identity? It is my understanding that credible witnesses cannot be used in Miss..I am concerned that I am misusing my authority to accept or reject if this person has overwhelming evidence that they are the individual on the papers. |
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snoopdogMs
Mississippi
21 Posts |
Posted - 03/24/2007 : 9:45:39 PM
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| I am glad I saw this particular thread as I am trying to get a grasp on this issue of using "reasonable reliance" to determine someones' identity. I just encounted an irate borrower who threw the papers all over the table and on the floor because of the ID issue. Her current ID said Jane D. Doe but her documents read Jane Doe and the Deed read Jane F. Doe. This lender required a 2nd ID which could be bills,etc.. Jane F.Doe was on all her bills and credentials. I called the lender and immediately was told to adjourn. The meeting was downhill and ugly after I announced I had to take the papers and leave. "Reasonable reliance" with this person able to present different paper after paper with Jane F. Doe on them, a picture/description and signature would have left me no option but to conclude that she was indeed Jane F. Doe. I can handle the confrontations, in this case I thought she might need a demon exorcised. But in truth, I had reasonable evidence that she was Jane F. Doe. If a drivers license expires the day before the closing why does this persons' identity become questionable? I don't believe it is a law in Ms.as far as black and white but highly recommended. When can I exercise this "reasonable reliance"? |
Edited by - snoopdogMs on 03/25/2007 03:07:32 AM |
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Joe Ewing
California
55 Posts |
Posted - 03/20/2007 : 02:46:36 AM
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quote:
Originally posted by Shannon
Joe,
I'm concerned that you seem to be indicating that there is somehow some discretion by the notary on whether to notarize. I prefer to rely on what is more black or white. The ID is going to be what the ID is....I would never feel comfortable with a name that is even partially different. Although I can't quote exact statute, I seem to recall that credible witnesses are not to be used for "convenience of the signer" for example: If the signer left his ID across town.....
Any thoughts on this?
Yes I do.
But first of all I have read every statement, listened to every argument, heard every rumor seen every message board posting from every individual who inquired, thought they knew, quoted from an expert, called the SOS or made up their own answer. In the distant past I too have even walked out of a closing for the lack of a middle initial even though I had no doubt as to the identity of the signer.
Experience x 3,000+ loans is a good teacher wouldn't you agree? The more you come to understand the civil codes that we adhere to as notaries in California the more you realize what quite a lot that was told, taught or written about is purely someones opinion and not a reflection of the actual truth. The less not more "rule" for this topic's example is an opinion not a fact. Does the fact that there is no mention of it in the California notary public handbook make it an un-reasonable request? Does it make sense to be that careful as to demand "less not more" and adjourn the notarial act because of that request? Which by the way would be impossible to satisfy unless a new ID was issued by the State or a Passport by the Government. The duty of the notary as written in the handbook is to use "reasonable reliance" based on a photograph and a description.
It should be noted that Penal code 115.5 makes it a felony and a $75,000 fine for a person (the signer) to use a false ID to induce a notary to preform an improper notarization affecting title to real property.
As notary signing agents the title companies that hire us are relying on us to make a positive identification of the signer to prevent mortgage fraud. If a person appearers before us with no ID or expired ID several people with satisfactory ID who personally know the signer who will not benefit financially and must swear to that persons identity can be used instead. But if the "more not less" rule is being applied when the notary is reasonably sure that the person appearing before the notary is that person, the additional requirement of credible witness without asking for other additional proofs of ID may be looked at as an unnecessary requirement being placed upon the signer by the notary. My thought is that this action could open the notary up to a lawsuit if these additional requirements being required by the notary are looked at in a court of law to be unnecessary.
If it turns out that the satisfactory ID presented by the signer is forged (false) and Joe Jones is not Joseph Jones, the notary has no liability unless it could be proved the notary was negligent (picture or description didn't match) or the notary would profit from the criminal act.
Now lets take this casual credible witness usage one step more. Say you used the credible witnesses (neighbors) and the signer was lying about his identity or the satisfactory ID was false but they willingly swear to that persons ID. The Notary has now involved 2 innocent bystanders in mortgage fraud. How will that play out in court?
*These opinions are purely my own and are not in anyway legal opinions
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Edited by - Joe Ewing on 03/20/2007 05:38:54 AM |
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Shannon
California
360 Posts |
Posted - 03/19/2007 : 11:52:48 PM
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Joe,
I'm concerned that you seem to be indicating that there is somehow some discretion by the notary on whether to notarize. I prefer to rely on what is more black or white. The ID is going to be what the ID is....I would never feel comfortable with a name that is even partially different. Although I can't quote exact statute, I seem to recall that credible witnesses are not to be used for "convenience of the signer" for example: If the signer left his ID across town.....
Any thoughts on this? |
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Joe Ewing
California
55 Posts |
Posted - 03/19/2007 : 10:45:44 PM
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quote:
Originally posted by macdeux
Part of the California Notary Codes 1185 (c)(1) and 1185 (c)(2) state the following:
quote:
Oath of a Single Credible Witness – The identity of the signer can be established by the oath of a single credible witness whom the notary public personally knows (Civil Code
section 1185(c)(1)).
AND
Oaths of Two Credible Witnesses – The identity of the signer can be established by the
oaths of two credible witnesses whom the notary public does not personally know (Civil
Code section 1185(c)(2)).
Credible witnesses need not be family members. In fact, in some cases it could be considered conflict of interest.
I have used credible witnesses on many occasions. When the signer has an expired ID or no ID at all a credible witness is necessary to establish the current identity of the signer without satisfactory ID.
* Missuse of credible witnesses by Notary Signing Agents
The credible witness codes were NOT created to determine the correct spelling, the presence of a middle name, whether the signer is a junior or a nick name is the real name. When a signer has a current acceptable ID that shows a slightly different spelling of the signers name that is printed on a set of loan docs, it is not appropriate to call two neighbors into a notarization to swear (a felony) not to someones identity but that the signer is actually a junior or that Joe is actually Joseph. That act by the notary in itself is inapproriate.
You (NOTARY) are looking at a picture, a description and a signature. It is the Notarys duty to make a resonable determination as to the identity of the signer based on that current satisfactory ID presented to him. If the notary is unable to do that then the notary should resign his commission. |
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macdeux
California
79 Posts |
Posted - 03/19/2007 : 02:58:22 AM
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Part of the California Notary Codes 1185 (c)(1) and 1185 (c)(2) state the following:
quote:
Oath of a Single Credible Witness – The identity of the signer can be established by the oath of a single credible witness whom the notary public personally knows (Civil Code
section 1185(c)(1)).
AND
Oaths of Two Credible Witnesses – The identity of the signer can be established by the
oaths of two credible witnesses whom the notary public does not personally know (Civil
Code section 1185(c)(2)).
Credible witnesses need not be family members. In fact, in some cases it could be considered conflict of interest. |
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jbelmont
California
3106 Posts |
Posted - 03/18/2007 : 4:40:00 PM
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| "If the name don't match... you must attach" - the signatures of credible witness(es) in your journal. Oaths by CW's also required in CA. Names on docs and ID's must match. If the ID has additional parts of the name like a middle initial, that is fine so long as there are no discrepencies. |
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Joe Ewing
California
55 Posts |
Posted - 03/18/2007 : 2:02:55 PM
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quote:
Originally posted by macdeux
I was told the first time that whatever the ID is has to have exact name or *more* than, but cannot be different or less than to serve as suitable ID.
Regarding ID there is no mention of more but not less in the California Notary code (Civil, Government or Business). They do mention "reasonable reliance". Did you ask the person at the SOS office to cite where they got that information? Credible witnesses would have to be family members to swear under penalty of purgery to the correct name on an ID. |
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Shannon
California
360 Posts |
Posted - 03/09/2007 : 08:31:06 AM
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Excellent response! I agree. Your reputation isn't worth the risk either.... |
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macdeux
California
79 Posts |
Posted - 03/09/2007 : 04:56:19 AM
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I was faced with this a few times too -- I went directly to California Sec. of State notary division and was told the first time that whatever the ID is has to have exact name or *more* than, but cannot be different or less than to serve as suitable ID.
Example: Name on ID is James V. Doe, but name on docs is James Doe -- that's o.k. However, if name on ID is James V. Doe, but name on docs is Jimmy Doe or J. Doe or something different, than go to credible witnesses if other qualifying ID is not available.
Never, I mean never, sacrifice your integrity or your commission. Err on the side of caution. |
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Joe Ewing
California
55 Posts |
Posted - 03/08/2007 : 11:23:25 PM
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You are correct Larry but Jimmy goes on the Acknowledgment. The AKA statement that the signer signs under oath would have him signing as Jimmy and James.
Credible witnesses when told that they must swear under penalty of purgery (a felony) punishable by 2-4 years in prison that their neighbor goes by a nickname will generally refuse to cooperate and rightly so. |
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Deborah Bond
Massachusetts
71 Posts |
Posted - 01/05/2007 : 07:27:41 AM
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I have had this exact situation previously. I was lucky. Docs as James, ID as JIMMY. I asked for additional id and was handed Passport, Social and birth certificate and was shocked to find Passport said Jimmy, Social James and Birth James...Hence I had plenty of info stating Jimmy was James.
I did not get copies of all this but called my contact LO and advised of name issue and that LEGALLY his name was JAMES but 1/2 ID said Jimmy and they wanted copy of the DL...which had the wrong name. Per the LO his ID Affidavit showed both names when we were done and on the copy of the drivers lic we had him state that is is known as Jimmy and had him sign as James...
Now if he had not the additional id's I would have had to adjourn because in Massachusetts CW are not a viable option.  CW needs to be known to both the NOTARY (highly unlikely) and the person being id'd. The chance of that is slim.  I liken it to asking my neighbor Bob (who I know) to ID another neighbor Chris who I know but has no ID. Chance is unlikely that would EVER happen.
Deborah
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Kate
California
8 Posts |
Posted - 01/04/2007 : 10:57:11 AM
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I would rely on CW. The name does not match. The license says Jimmy
Doe, you have nothing that says he is James Doe, of course the signature is going to match, you are looking at the signature of Jimmy Doe. Take the pressure off yourself and put it on the borrower to provide appropriate ID or CW's. |
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crtowles
California
553 Posts |
Posted - 12/31/2006 : 12:40:51 PM
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| Fisrt of all what state are you in Larry..Callie? |
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n/a
California
2 Posts |
Posted - 12/31/2006 : 11:01:01 AM
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It has been suggested that credible witnesses would be an appropriate method to establish the idenity of a signer when the docs had the name printed as James Doe, and they had to be signed that way, and the drivers license the borrower presented had the name Jimmy Doe.
My take on this is that credible witnesses could NOT be used but that reasonable reliance on the drivers license photo, description and signature match would allow me to notarize the signature as James Doe.
Am I wrong here? I'm in California.
Larry |
Edited by - n/a on 12/31/2006 12:52:47 PM |
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Topic |
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Dear Signing Agents,
Credible witnesses
1 person liked this post.