CALIFORNIA NOTARY LAWS & EXAM PREPARATION

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1 CALIFORNIA NOTARY LAWS & EXAM PREPARATION Notary Public 30-Minute Study Guide (This guide should not be used as a substitute for an actual Notary Home Study course!) This is a quick introduction to California notary law before you take your notary seminar. Our notary seminar will cover all of this material and much more to prepare you for the notary exam. Daniel C. Jones, MA.Ed; Notary Public Copyright 2015 notaryclasses.com. All rights reserved NOTARYCLASSES.COM Rev2/2/15

2 THE OFFICE OF THE NOTARY PUBLIC What is a Notary Public? California Notary Laws and Exam Preparation The notary public office exists primarily to protect the public by helping to minimize fraud. California Government and Civil Codes describe most notary requirements and conduct. Notaries in California are generally commissioned for a period of (4) four year terms after which a notary wishing to re-commission must re-apply for another term. Geographical Limitations for Providing Service Except for notaries who are appointed on a military base, notaries commissioned in California may notarize documents anywhere within the state of California, but only while physically present in the state of California. Governed by the Laws of California A California notary is governed by the laws of the State California. Indeed, California notaries may perform notary services for clients with documents that originate anywhere and even in any language whether or not the notary understands the language. This is because a notary seal on a document concerns the signature process and guarantees that notarial procedure was followed regarding the signing of the document but does not guarantee or legalize the contents within the document. So, if there is no place on the document for someone to sign, the notary has nothing to notarize. However, other states and countries may expect or require that a notary in that state or country perform an action that is illegal for a California notary. This means that a California notary only needs to learn California notary law and not the notary laws of every other state or country. Impartial Witness A notary may never notarize his or her own signature (obviously) but also may not notarize any signatures on any document which the notary has a direct beneficial or financial interest. The notary must always remain an impartial witness. 2

3 Beneficial interest applied to specific circumstances With respect to a financial transaction, a notary, acting in the capacity of an attorney, agent, employee, insurer, escrow, or lender for the person having a direct beneficial or financial interest in the document has NO beneficial interest in the transaction and MAY notarize the document. Financial interest applied to specific circumstances With respect to real-estate transactions, a notary who is named individually as a Grantor, Grantee, Mortgagor, Mortgagee, Trustor, Trustee, Beneficiary, Vendor, Vendee, Lessor, or Lessee to the transaction IS determined to have a beneficial or financial interest in the document and may NOT notarize that document. Notarizing for spouses, domestic partners and relatives As long as the notary does not have a beneficial or financial interest in the document, a notary is permitted to notarize for a spouse, domestic partner, or relative, the notary should be very cautious concerning these documents, especially documents that may relate to community property. General Guidelines for the Duties of a Notary Public When notarial services are required, the notary will complete a Notary Act. Regardless of the specific notary act, there are always general notarial procedures that must always be followed. The signer must personally appear before the notary public. The notary must properly identify the person who appears for notarization. The notary must complete a journal entry for every notary act performed. The notary must truthfully complete correct notarial verbiage on the document or, if necessary, attach the completed verbiage to the document. The notary must use an official notary seal (stamp) to complete the notary act. Certify a copy of a Power of Attorney Certifying a copy means that the notary compared the original document to the copy and the copy is certified to be a true and exact representation of the original document. California Probate Code (not the California Government or 3

4 Civil Code) determines that a Certified Copy of a Power of Attorney will have the same force and effect as the original. To complete a Certification of a Power of Attorney, the requester must present the original Power of Attorney and the notary should make a photocopy of that original. If the notary is unable to make a photocopy but is presented with a photocopy from the requester or any other party, the notary must compare word for word ensuring that the copy has not be modified in any manner. Certify a copy of a Journal records It is possible that the Secretary of State may require the notary to send a certified copy of a journal record or combination of records that may, for example, be used as part of an investigation. If the notary receives such a request, it is the duty of the notary to respond in the time specified in the request. Responding to the Secretary of State A notary public has an additional duty to respond to any written request from the Secretary of State. A notary public must respond within 30 calendar days of receiving a written request from the California Secretary of State, or whatever time-frame is required. 4

5 BECOMING A NOTARY PUBLIC IN CALIFORNIA Qualifications to become a California notary public Must be at least 18 years of age. Must be a legal resident of California. Must pass a criminal background check. Submit an application to the Secretary of State. Must complete a state approved notary educational course. Take and pass the notary public examination. Taking a re-examination o If you do not pass the initial exam, you must wait until the following calendar month in order to retake your notary exam. Exam questions are changed every calendar month. Testing fees are only $20 and are payable to the Secretary of State. Child support requirements Anyone not in compliance with child support payments may have their applications denied or may receive a temporary commission only. Notaries who do not remain in compliance with child support requirements may have their commissions suspended or revoked by the Secretary of State. What you can expect in a few weeks You will receive notification of passing your notary exam by in 15 to 20 business days. After passing your exam, you simply need to wait for the completion of your criminal background check. When you complete your notary application, you may choose to list your address on the top right portion of the application. If you do that, be sure it is legible and accurate. This will allow s regarding your application if there are any questions and, you should also receive an regarding your examination results. If you do not receive an , and need to log into the website to find your score, you may need to call the CPS at (916) to obtain a password. Receiving your commission packet in the mail Upon receipt of your letter of commission, you will have thirty (30) calendar days from the commencement date stated on your letter of commission as the 5

6 date the commission was granted to obtain a bond, take an oath, and subscribe and file both with the Office of the County Clerk in the county in which you indicate on your application will be your principal county of business. The notary public s commission becomes valid on the date that the notary public files their oath of office and a surety bond with the county clerk s office since recording takes place on that same day. Your notary surety bond must be purchased from a California admitted surety company and must be in the amount of $15,000. The notary and the surety company named on the bond are financially liable for notarial acts completed improperly, illegally, or through negligence. The bond offers protection to the public in the event the notary is found financially liable for negligent or misconduct and in no way protects you. This bond is not liability insurance for you! It is designed as a limited source of funds, but the notary may be responsible for repayment to the surety company in addition to any amount of liability above the $15,000. Although it is not legally required, many notaries purchase a separate Errors and Omissions insurance policy for additional personal protection. Filing your oath and bond You may take and subscribe your oath at the office of the County Clerk or in front of another notary public within that same county where the oath and bond are to be filed. The notary will require the oath and will notarize your signature on the document to be filed, and if you send it to the county recorder by mail, it must be sent by Certified Mail. If you choose to send it by certified mail, you, the applicant will bear responsibility for both the oath and bond to be satisfactorily received and filed within the 30-day period. Please note that the thirty (30) calendar days begin on the day the commission was granted and is stated on the Letter of Commission and not the day you received the letter from the Secretary of State. 6

7 When you file your oath and bond with the county recorder, it will be necessary to pay two fees to the county: a recording fee and a filing fee. The fees can differ significantly by county. You may not notarize any signatures until this oath and bond are filed because your commission is not valid until the oath and bond are on file. Failure to file your oath and bond within this 30 calendar days will result in voidance of your commission. If your commission is voided, you will need to reapply all over again and pay $20 to submit a new notary application, and you may need to resubmit fingerprints via live scan again but, unless more than one year has gone by, you will not need to retake the exam and neither will you need to re-take the notary course since the Proof of Completion is good for two years. Any person who provides notarial services or advertises as a notary public without being a duly commissioned notary is guilty of a misdemeanor, but if the act relates to documents associated with a Deed of Trust, it becomes a felony. Authorization to manufacture notary seals When you receive the letter of commission from the Secretary of State, you will also receive a letter of authorization to manufacture your Notary Seal and a listing of authorized seal manufacturers. You will send your original authorization to the seal manufacturer of your choice. If, for any reason, you must manufacture additional seals anytime during your commission, you must obtain Deed of Trust / felony 7

8 authorization from the Secretary of State who will forward you a new authorization to manufacture a notary seal. Also notice above that the commission term is 4-years. In this case it begins on November 20, 2012 and ends on November 19, 2016 at midnight, not November 20! INDEPENDENT NOTARIES AND EMPLOYEE NOTARIES Independent notaries are those individuals who have sought a notary commission on their own rather than through the request of an employer. As an independent notary public in the state of California, the notary is required to notarize a document for anyone who: 1) Properly requests their services 2) Is able to present satisfactory identification 3) Is willing and able to pay for the services Of course, this assumes that the notary has a place of business where he or she conducts notarial services with posted hours of service and by no means does this require a notary to travel in order to fulfill a notary request. Refusing to provide notary services for someone during the posted hours of service can actually result in criminal prosecution of a misdemeanor, a fine of $750 and suspension or revocation of the notary commission. Employee Notaries Public While many notaries seek a commission in order to provide notarial services to the general public, often notary applicants pursue a commission specifically at the request 8

9 of an employer. There are three categories of notaries public who obtain a commission as an employee notary public: A notary public working for a private employer. Those employed by the state of California, city, county public agency, or public school district. Those notaries public appointed on a military or naval reservation. Private employer Notaries who are notarizing documents in the capacity of an employee for the purposes of the employer may, upon arrangement with their employer, have their notarial services limited to the purposes of the employer during their hours of employment. This is based on an agreement with the employer as some employers may allow their notary employees to notarize documents for the public as well as for their business. California notaries personally own their commission, notary seal, and bond regardless of who paid for them. Private employer notaries retain the right to notarize for the public on their own time outside of their employment hours but during working hours the employee and the employer may negotiate how much of the notary fees charged may be kept or remitted to the employer. Even if the employer pays all of the fees for the employee to become a notary, the employee notary is responsible for paying their own filing fees when filing their oath and bond. Private employer notaries may elect to retain their commission regardless of who paid for it should their employment terminate. If the notary chooses to resign his or her commission after changing employment, he or she must notify the Secretary of State in writing and turn in all notary journals to the county clerk s office where the current oath is on file, and must do so within thirty (30) calendar days and the notary seal must be defaced or destroyed. Should the employee notary elect to retain his or her commission after changing employment or a changing residential address, a Change of Address form must be completed and filed with the Secretary of State by certified mail within thirty (30) calendar days of the change of address. This form can be found on the Secretary of State website and there is no charge to submit the change. If the notary listed the previous employer as the name of business, and the employee notary changed employment to a different business entity, the notary will need to name a new business address which may be the new employer, self or self-employed. 9

10 Since a California notary is permitted to notarize anywhere in the state of California, a notary who moves to a different county is not required to file a new oath or amended bond in that county. However, the notary may choose to file a new oath and an amended bond so that the notary seal will reflect the new county of business. If the notary chooses to file the new oath and amended bond, the notary will have thirty (30) calendar days to purchase another seal indicating the new county. Keep in mind that there will always be a recording fee and a filing fee by the county clerk which differs between counties. Public entity employees: Those persons who have been appointed by the Secretary of State on behalf of a California state, city, county public agency, or public school district to serve as a notary public, for and on behalf of that public entity and, who have had their commissioning fees and other associated fees paid for by their employer, may only perform notarial acts on behalf of their public entity employer and are not permitted to notarize on their own time. You will remember that the private employer notary was able to negotiate the remittance of notary fees with their employer, but public entity employee notaries may not keep any of the fees and must remit any fees charged for notary services back to their employer. On termination or resignation from the public entity employer, these notaries may not choose to retain their commission but must resign their notary commission by sending an immediate written notification to the Secretary of State. Upon resignation, all notarial records must be delivered to the county clerk within thirty (30) calendar days and the notary public s seal must be defaced or destroyed. COMPLETING THE NOTARY ACT Acknowledgments and Jurats The two most common Notary Acts are known as Taking an Acknowledgment and Administering a Jurat. Most importantly, the notary will not choose which notary act to preform unless that notary also happens to be an attorney. A non-attorney notary may never give legal advice and selecting which notary act to perform is not permitted. 10

11 ACKNOWLEDGMENTS Taking an acknowledgment means that the document signer: 1) Acknowledged to the notary at the time of notarization that he or she signed the document and 2) Did so in his or her authorized capacity (the person s title is assumed to be true) 3) Personally appeared before the notary and provided an acceptable means of identification to the notary. Acknowledging a signature to the notary A document signer requiring their signature to be acknowledged will acknowledge his or her signature to the notary in one of two ways: the signer will sign the document in front of the notary or, if the document has already been signed, the notary must ask the signer whether or not the signature on the document is indeed that signer s signature. The signer must then acknowledge his or her signature by answering the notary affirmatively. The document does not need to be resigned and the signing date does not need to match the date of notarization. Personal appearance required This acknowledgment must take place in person! It cannot be done by fax, video or over the phone. Of course the document itself may be a copy or may have been sent by fax or , but the signature must be an original wet signature. Communication between the document signer and the notary is required If a person signing a document cannot communicate to you in your language, the notary must refuse to notarize that document and instruct the person to find a notary who does speak their language. Using an interpreter brought in by the client is not permissible since the interpreter may have ulterior motives or something important may be lost in the translation. Beginning January 1, 2015, all California Acknowledgments must contain the following box with the disclaimer statement that the notary only verifies identity of the document signer and does not verify truthfulness, accuracy or validity of the document. This must be placed above the venue (state and county) and must be enclosed. It also must be noted in a legible font or typeface. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 11

12 California Acknowledgment after January 1, 2015 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On before me, personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ( Notary Seal) SIignature You will notice that towards the bottom of acknowledgment wording appears a clause that the notary is signing under PENALTY OF PERJURY. The Acknowledgment verbiage must be completed at the time the seal and notary s signature are placed onto the document and that information must be truthfully recorded by the notary. Falsifying an Acknowledgment can subject the notary to a civil penalty of up to $10,000 which may be brought by the Secretary of State in an administrative proceeding or a public prosecutor in superior court. The notary can also be charged with a felony and serve 2, 3, or 4 years in prison and may be required to repay any financial liabilities that may have resulted from the falsification. Authorized capacity If we look closely at acknowledgement wording, we can see that it mentions that the signer not only acknowledges their signature, but also acknowledges signing the document in their authorized capacity. This simply means that the document signer claims to be authorized to execute the document. Iin California, notaries never verify the authorized capacity of the document signer. Verifying document completeness When a notary is presented with a document that requires a signature or signatures to be acknowledged, the first step is to review the entire document for completeness as it is not permissible for a notary to provide notary services pertaining to a blank or 12

13 incomplete document. The notary may ignore information intended to be added later, such as information to be entered by the county recorder and may also ignore signatures not being notarized by the notary public. If presented with a document for notarization that the notary public knows from his or her experience to be incomplete, or that is without a doubt incomplete, the notary public must refuse to notarize the document. Requiring the acknowledgment If the signature is already on the document when it is presented to the notary, it does not need to be re-signed but the signer must affirm to the notary that the signature present is indeed his or her signature. Often, the signature will include a date of signing. It is not necessary to change that date if the document has already been signed. Just ask the signer whether or not the signature is their signature. The signer must respond affirmatively and that is sufficient acknowledgment. Identification of the document signer The notary must properly identify the document signer and part of the acknowledgment verbiage states that the notary used satisfactory evidence for identification. Notary Journal entries Before completing acknowledgment wording, the notary should record the information regarding this notary act into their official journal of records. We will discuss how to do this properly in Chapter 8 later in this class, but for now, it is sufficient to realize that good notary practice is to complete the journal entry first, then complete the notary wording. The very last step should be to place the notary seal onto the document. The notary may use one Acknowledgment form for multiple signers, but each signer must personally appear before the notary at the time of signing. If notarizing a single document for multiple signers at different times, the notary must use a separate Acknowledgment for each event. Acknowledgment wording must be correct Acknowledgment verbiage is very important especially with documents to be filed in California. We are allowed to use acknowledgment wording from other states if that document will be used or recorded in that state, but for all documents being used or recorded in California, the wording on the acknowledgment must be correct. If it is not correct, the notary must attach the correct wording with a correct loose certificate or All Purpose Acknowledgment form. This must be attached with a staple. The notary will complete the correct acknowledgment and the notary seal must be placed onto that 13

14 acknowledgment, not the incorrect one. The notary seal may never be placed onto an acknowledgment that does not use acceptable wording. Acknowledgment wording from other states While California state law allows California notaries to use the Acknowledgment verbiage from other states, we may not use that wording if it requires us to do something that is illegal for a notary in California such as verifying authorized capacity or using personal knowledge as satisfactory identification. If that state s notary wording requires us to do something illegal for a California notary to do, we are then obligated to use California acknowledgment wording (attaching a loose certificate) even if it is going back to that other state. JURATS Notice that an acknowledgment does not require the signer to swear or affirm the truthfulness of the statements within those documents! When a signer must swear to the notary that the contents within the document are true, a completely different notary act is performed and that notary act is called administering a Jurat and, as we will see, the notary will complete notary wording which is different from acknowledgment wording. This notary act is sometimes also referred to as taking an affidavit since an affidavit is a sworn statement. The notary must administer an oath or affirmation when completing a Jurat. There is no exact required wording but an example of an affirmation would be: Do you swear under the penalty of perjury that the contents in this document are the truth, the whole truth, and nothing but the truth? The affiant (the person making the affidavit) must reply affirmatively or the notary process cannot continue. If the notary chooses to use the phrase so help you God, the affirmation becomes an oath. While it is not a legal requirement, many notaries public require the affiant to raise his or her right hand in order to communicate a greater degree of seriousness for the process. Failure to administer the oath or affirmation is means that the notary failed to properly complete the notary act which is subject to a civil penalty of up to $750 and the notary act may be challenged in court further subjecting the notary to liability damages. Administering the Jurat Once again, the notary must review the entire document for completeness and may not notarize the signature if the document is either missing pages or missing information other than information intended to be added later such as the stamp from the county recorder after recording. The signer of a Jurat must sign the document in the notary s 14

15 presence at the time of notarization since the signer is subscribing and swearing an oath or affirmation that the contents of the document are true. Unlike acknowledgments, if the document requiring a jurat has already been signed, the document signer must re-sign the document in the notary s presence after taking the oath. Additionally, the date of signing must also match the date of notarization! As with the acknowledgment, a notary may not complete a Jurat for any person without personal appearance and once again, the notary and the signer must be able to communicate in a common language, even if it is by writing as may be done for signers with hearing or speech impairments. Completing proper Jurat wording for California Jurat wording must also include the same wording as in the acknowledgment in an enclosed box which denotes that the notary act is specifically meant to verify identity and does not guarantee that the contents of the document are true. This wording became effective January 1, Proper Jurat wording beginning 2015 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Subscribed and sworn to (or affirmed) before me on this day of, 20 by, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. Signature of Notary (Notary Seal) Completing the Jurat is similar to Completing the Acknowledgment. The venue indicates the state and county where the document signer took the oath and affirmation, signed the document, and the notary act was performed. The notary must enter the day, month, and year that the document signer(s) appeared before the notary public, and that date should be the same as the date the document was signed since the document must be signed in the presence of the notary after the oath or affirmation process. 15

16 The document signer s name(s) must be inserted into the next portion after the word by indicating that the document signer subscribed and swore (or affirmed) that the contents of the document were true to the best of their knowledge. The notary will sign the Jurat form with the same signature as is on file with the county clerk and place the notary seal on the same side as the notary wording and as close to the notary s signature as possible. Improper Jurat wording Jurat wording for all documents regardless of where they may be sent must comply with California Jurat wording. The wording for Jurats must be in the exact form as we just noted on the previous page which most notably includes a statement that the signer provided satisfactory identification to the notary upon signing. Many other states notary wording do not include that statement. If the wording is not correct, the notary must modify the wording by either adding a loose Jurat certificate to the back or, if there is room on the document, a legible, clear, and unobstructed imprint using a stamp with correct wording is sufficient. PROPER IDENTIFICATION Personal knowledge alone between the document signer and the notary is not acceptable identification for a notary in California. Even if the notary personally knows the document signer, proper satisfactory evidence must be presented to the notary. Negligent failure to obtain proper identification for a document signer falls into the category of failure to properly complete a notary act and can subject the notary to a civil penalty of up to $750. Definition of Satisfactory Evidence for identification Satisfactory evidence means the absence of any information, evidence, or other circumstances that would lead a reasonable person to believe that the individual is not the individual he or she claims to be and requiring acceptable identification documents. If there are no acceptable identification documents available, then the notary must follow rules that apply for obtaining the oath or oaths of someone else who personally knows the document signer. We will discuss these special circumstances after reviewing the list of acceptable identification documents. 16

17 Acceptable identification documents: Requirements of acceptable identification Must be current or issued within 5 years Serial Number Contains the name of the signer Photograph of the signer Signature of the person* Physical description* Driver s License or DMV Identification - Any state (Not temporary paper licenses) Driver s licenses issued by Canada or Mexico An employee identification card issued by any California state, county or city agency or office. Military identification card Newer types of military cards are not signed and have no physical description of the person. The information is contained on a chip embedded into the card. These types of military ID cards are not acceptable. The following identification documents must include all above requirements except where specifically noted for variation. United States Passport* Does not require a physical description Foreign Passports but must be stamped by the United States Immigration and Naturalization Services. (The United States Citizenship and Immigration Services An inmate identification card that has been issued by the Department of Corrections and Rehabilitation, but only for inmates in custody in a California STATE prison and if the card is current or has been issued within 5 years. These cards are not required to have the signature or a physical description. Identification cards issued by federal prisons, county jails or city jails are not authorized forms of identification. Inmate identification bracelets are not acceptable identification for the purposes of notarization. Name form variations The best case is when the name on the name on the document matches the name on the identification exactly, but that does not always happen. The rule of thumb to follow regarding name variations is as follows: 17

18 The name on the identification document lists as much or more information than the name on the document, but never less and never different! Name on Document Name on Identification Can this identification be used? Yes No John S. Signer, Jr. John S. Signer Steven M. Park Steven Park Colleen Jones Colleen Marie Jones Robert B. Baker Bobby B. Baker Madeline Clark-Young Madeline Young Daniel Sanchez Dan Sanchez The use of other people as identification- Credible Witness(es) What can be done if someone does not have an identification document available? Remember that it is not acceptable for a notary to use personal knowledge to identify a document signer, but if someone does not have an acceptable identification form, the notary is permitted to use the oath of one other person who personally knows the document signer and personally knows the notary. If no person can be found who knows both the notary and the signer, the oaths of two people who both personally know the document signer can be used instead. It is through the oaths of these individuals that we identify the document signer and this process is called using credible witnesses. Personal knowledge means that there is, between the two individuals, a relationship of sufficiency that reasonably establishes certainty as to the identity of the signer. Credible witnesses are only used when the document signer cannot be reasonably expected to obtain an approved identification document. Credible witnesses must swear an oath to the notary that: o The individual appearing before the notary public as the signer of the document is the person named in the document; o The credible witness personally knows the signer; o 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; 18

19 o The signer does not possess any of the identification documents authorized by law to establish the signer s identity; o The credible witness does not have a financial interest in the document and is not named within the document. Once again, a single credible witness may be used when that credible witness personally knows both the signer and the notary, otherwise, two credible witnesses are used. Of course, credible witnesses always know the document signer or they could not be credible witnesses. Credible witnesses must be able to present a satisfactory form of identification to the notary and if using two credible witnesses, the notary must record that information into the journal and both credible witnesses must sign the journal. But, if the notary uses only one credible witness, the notary must either record the id information or have the credible witness sign the journal. The Secretary of State recommends that when using a single credible witness, even though it is permissible to obtain either the signature of the credible witness in the journal or a journal record of the identification information presented to the notary, the best practice is to obtain both the signature and the identification information. Should the notary fail to obtain identification for a document signer, that notary has failed to properly complete the notary act and the notary can be fined up to $750. However, if the notary fails to obtain identification for a credible witness, the fine goes up to $10,000! 19

20 Using witnesses for a person signing by mark If the signer of an instrument cannot write (sign) his or her name, that person may sign by mark (x). It does not need to be an x but can be any mark so long as the mark is made onto the document under his or her own power and the physical making of the mark has been properly witnessed. The signer s mark must be witnessed by two persons who must subscribe their own names as witnesses on the document. X John Zimmer by: Mary Jones Witness #1 Peter R. Roberts Witness #2 Only one witness is required to subscribe the document signer s name, but both witnesses sign the document. The witnesses are only verifying that they witnessed the individual make his or her mark under his or her own power. All persons signing a document must be able to sign under his or her own power except that another person may physically support the arm or hand of the signer. Assistance precludes manipulation of the signer s ability to create the signature on his own. A notary public is not required to identify the two persons who witnessed the signing by mark and it does not matter if they may have a financial interest in the document. When a notary completes a notary act for a person who is signing by mark, he or she must still verify the identity of the person signing by mark. In addition, that person must also sign the journal with his or her mark. Someone must write the person s name next to the mark made in the journal. Typically one of the witnesses will do this, but it could be anyone else as well. Whoever writes the name of the document signer in the journal must also sign the journal. To clarify, neither witness is required to sign the journal but both must sign the document. Someone, if not one of the witnesses, then someone else, must also write 20

21 out the name of the person next to his or her mark in the journal and then sign the journal. Subscribing Witnesses (Proof of Execution) What happens is someone needs to sign a document which requires notarization but that signer cannot personally appear before a notary? Not because he does not want to take the time to appear, but circumstances make it impossible for him to appear. There is a process whereby the document signer may ask someone else to take the document to a notary for notarization on his or her behalf and this process is called a Proof of Execution because someone is going to prove to the notary through an oath or affirmation that the document was indeed executed by the person named within the document. Tanya Traveler Understanding the Proof of Execution Suppose Tanya Traveler is leaving the country for an extended trip but has just received a document that needs to be notarized. Unfortunately, she does not have time to appear before a notary in time to have her signature notarized. As long as the document is not a real-estate document*, Power of Attorney, mortgage, security agreement or any document that requires a notary to obtain a thumbprint from the document signer, she is permitted to request that someone else who she personally knows takes the document to the notary on her behalf. Tanya must first acknowledge to that person that she signed the document. So, for our story, Tanya asks a long-time work colleague, Samuel Scribe to take the document to a notary for her. Samuel Scribe Just as if she had appeared before a notary herself, Tanya must personally acknowledge her signature on the document by signing in front of her colleague or stating to the colleague that she already signed the document. This acknowledgment cannot be done over the phone, video or . This colleague, Samuel Scribe is now called a Subscribing Witness because the signature on the document was personally acknowledged by the signer to him. There is no California notary legislation prohibiting the subscribing witness from having a direct 21

22 beneficial or financial interest in the document, but it is probably better to use someone who would not have a beneficial or financial interest. The next step is for the subscribing witness to find someone who personally knows him and personally knows a notary public to go along with him in order to have the notary process completed. This is because the notary is required to use a credible witness for identification and not identification documents. Let s review up until now! So Tanya has signed the document, personally acknowledged the signing to Samuel Scribe since she cannot personally acknowledge her signature before a notary, and she has requested that Samuel take the document a notary public for notarization on her behalf. Samuel Scribe must find someone who knows him and knows a notary public to finalize the notary process who will be a credible witness for Samuel. It is important to remember here that a credible witness cannot have a beneficial or financial interest in the document being notarized. Appearing before the notary Fortunately for Samuel, his close friend, Freddie Friend is married to a notary public so Samuel goes with his friend to complete the notary process. Samuel Scribe Personal knowledge linkage Freddie Friend The notary public Tanya Traveler Samuel Scribe Freddie Friend The notary public There is an important chain of personal knowledge from the notary back to the original document signer. There is a chain of personal knowledge even though the document signer cannot appear before the notary. The identity of the subscribing witness must be established with the oath of a credible witness. If no single credible witness can be found who knows both the subscribing witness and the notary public, the Proof of Execution cannot be done! 22

23 The Subscribing witness will swear an oath or affirmation to the notary 1) That the person who is named in the document is the person who signed the document; 2) That signer acknowledged signing the document while physically in his presence; 3) That the signer requested that he take the document to a notary public. It is this oath that proves the signature on the document was placed onto the document by the indicated document signer. That is why this process is called Proof of Execution. Since the subscribing witness swore an oath to the notary, he must also sign the document, but he signs the document as the subscribing witness. Remember that a notary cannot perform a notary procedure for someone who does not personally appear so the notary cannot complete the acknowledgment wording on the document which is intended for the original signer since she is not present. That means the notary must complete a notary act for the person who is present, namely the subscribing witness. After signing the document as a subscribing witness, the notary must then require that the credible witness, who is personally known by the notary and personally knows the subscribing witness, swear an oath or affirmation to the notary that he or she personally knows the subscribing witness. All of this information will be used to then complete the Proof of Execution or sometimes referred to as the Subscribing Witness Jurat. Let s note once again exactly what is proven to the notary with this Proof of Execution. 1) The oath of the subscribing witness proves that: a. The signature on the document was acknowledged to the subscribing witness; b. This acknowledgment took place in person; c. That the person who signed the document is the same person as named within the document; d. The subscribing witness personally knows the document signer. 2) The oath of the credible witness proves that: a. The credible witness personally knows the subscribing witness. 23

24 The subscribing witness must also sign the notary s official journal and of course, as is always the case with using a single credible witness, the notary must still physically inspect the credible witness identification document and then require that the credible witness either sign the notary journal or the notary must record the credible witness s identification information into the journal. Once again, it is advisable to obtain both the signature and the identification information in the notary journal. You may have remembered an earlier discussion that the notary is not permitted to use identification documents to verify the identity of the subscribing witness, but remember that the notary is not using an identification document to verify the subscribing witness s identity here. The notary verified the subscribing witness s identity with the oath of the credible witness. Just keep in mind, even though there is personal knowledge between the notary and the credible witness, the notary must still physically see the satisfactory identification document for the credible witness, or that credible witness cannot be used. Finally, as we will learn in the next chapter, there are some documents that will require a thumbprint be placed into the journal. The Proof of Execution procedure we just discussed may not be used with any Power of Attorney, Grant Deed, Mortgage, Deed of Trust, Quitclaim Deed, Security Agreement, or any document affecting real property* or any other document that requires the notary public to obtain a thumbprint in the notary public journal from the party signing the document. *Important note: A Proof of Execution for a Trustee s Deed or Deed of Reconveyance is permitted. A deed is the document that transfers ownership or an interest in real property to another party or entities. A trustee sometimes uses a Trustee s Deed in bankruptcy proceedings to sell the real property of a debtor. A deed of reconveyance is issued to a borrower upon payoff of a loan specific to a property. 24

25 THE NOTARY JOURNAL AND SEAL JOURNAL RECORDS The notary is required to keep a sequential journal of records and use an official notary seal. The notary is permitted to keep only one active sequential journal at a time, which must contain the record all official acts performed as a notary public. Both the journal and seal always be kept in a locked and secured area, under the direct and exclusive control of the notary when not in use. A secured area requires exclusive access by the notary. A locked room or desk whereby another person has access with a key is not sufficiently secured. All notary acts must be properly recorded in that notarial journal including records of notarial acts made on behalf of an employer. If the notary wants to notarize for the public outside of regular business hours, the same notary journal must be used as the notary may only use one journal at a time regardless of what they are notarizing. A notary may never relinquish direct and exclusive control over his or her notary seal or notary journal and may never turn over notarial journals or notary seals over to their employers upon termination of their employment. If the employer of a notary public wants to have copies of the notary journal records pertaining to the business, the notary must supervise the process of copying those journal entries. The journal must remain in constant presence with the notary while the journal line item or pages are copied. Only the records in question may be copied and all other records must remain absent from the copies. Simply cover the remaining entries on the page before photocopying. When the notary who has obtained their commission as an employee leaves the employer, he or she is to keep their journals. The employer may not demand that the notary journal be returned to them, or left on their premises after termination of employment. An employer who demands that a notary employee engage in a notary practice or procedure that is illegal may be guilty of a misdemeanor and the notary must not comply. For example, should the employer require the notary complete a notarial act without having the signer physically present at the time the act is completed, the notary must refuse to complete that act. 25

26 The journal must contain the following information: Type of notary act Statement regarding satisfactory evidence Identification method Date and time of notary act Name or Character of the document Fee charged Identity document information or credible witness information and/or signature Signature of document signer Identity document information or second credible witness information and signature of credible witness Thumbprint of the document signer if the document is a Power of Attorney, and for any other document affecting real property including Deeds, Quitclaim Deeds, Deeds of Trust, Security Agreements and Mortgages. ***Please note that not all documents with the word Deed in their title require a right thumbprint! For example, Thumbprints are not required for Deeds of Reconveyance or for a Trustee s Deed resulting from a decree of foreclosure or nonjudicial foreclosure pursuant to Civil Code section If the right thumbprint is unavailable, use a left thumbprint or any available finger, but be sure to indicate what was used. If the signer is unable to provide a print, the notary must document the inability and state an explanation as to why the fingerprint was unavailable. Failure to obtain a thumbprint when required is subject to a civil penalty of up to $2,

27 Record the following information from the identification document used: California Notary Laws and Exam Preparation Identity document information if using an identity document Name of identification document used Serial number Date of expiration or issuance Stolen, lost, destroyed notary journals or notary seals If the journal or seal is stolen, lost, destroyed, damaged, or otherwise rendered unusable, the notary public must immediately notify the Secretary of State by certified or registered mail. If the journal is later found, it may no longer be used for new entries. If the notary seal is later found that notary seal may still be used but the notary should again notify the Secretary of State that the notary seal was found. Willful failure to report the theft or loss of a journal or seal is grounds for suspension or revocation of the notary s commission. A civil penalty (fine) of up to $1,500 can be imposed for failure to notify the Secretary of State of a lost or stolen notary seal or journal. The notification of a lost or stolen journal must include: The period of the journal entries The notary public commission number 27

28 The expiration date of the commission And when applicable, a photocopy of any police report that may have been filed. Anyone who willfully destroys, conceals, or defaces a notary journal (or any notarial record) may be charged with a misdemeanor as well as other relief or remedy as provided by law. Surrendering the journal to the County Clerk or a peace officer Unless presented with a court order, the notary may not surrender the journal to any person, except the County Clerk, or to a peace officer who is acting in his or her official capacity and within his or her authority. The peace officer must have probable cause to believe the journal contains evidence of a criminal offense. The peace officer that seizes the journal must notify the Secretary of State within 24 hours or as soon as possible with the name of the notary public whose journal was seized. The notary must comply with the request from the peace officer immediately or as soon as possible if the journal is not in his or her possession. The willful failure to provide the journal to a peace officer when requested is punishable by a civil penalty of up to $2,500 from the Secretary of State or public prosecutor and suspension or revocation of the commission. The peace officer, if acting within his or her authority, may also examine a notary public s pertinent records whether or not a request is made of the notary to surrender those records. If the journal is surrendered, the notary must obtain a receipt for the journal and notify the Secretary of State within ten (10) calendar days by certified mail that the journal was relinquished to a peace officer. The notification must include: The period of journal entries, The commission number of the notary public, The expiration date of the commission, And a photocopy of the receipt. If that journal is later returned, the notary may not make any additional entries in that journal. 28

29 Providing copies of journal entries to the public If the notary receives a request from any member of the public to provide a copy of a specific entry, the notary has fifteen (15) business days to comply by providing either the copy as requested, or a statement that no such item exists. Any member of the public may request a copy of a journal entry, but they must include in that written request: The name of the parties, The type of document, And the month and year in which notarized. When to turn journals into the County Clerk s office It is not necessary for the notary to begin a new journal when recommissioning as long as less than the thirty (30) calendar days has passed between commissions. Notaries hold onto their journals continually even through multiple commissions so long as not more than 30 days goes by between valid commissions. If the notary resigns his or her commission or allows more than thirty (30) days to pass after his or her commission expires without recommissioning, the notary must turn in his or her journal to the County Clerk s office where the oath is on file and the Secretary of State should be notified. Failure to do so could result in a misdemeanor. Documents delivered to the Secretary of State will be returned to the sender. If the notary is unable to deliver the journals (either through illness or death), someone appointed on the notary s behalf should follow this requirement on behalf of the notary. 29

30 THE NOTARY SEAL Sequential Commission Number (added in 1992) Name of Notary Manufacturer or vendor number (added in 1992) California State Seal County where oath and bond are filed Serrated or milled edge border Commission Expiration Date The notary seal may be rectangular in shape but cannot exceed 2 1/2 inches in length and 1 inch in width. A circular seal may also be used as long as it contains all of the required information and is no more than 2 in diameter. There is no ink color requirement for the notary seal other than it must be photographically reproducible and all parts of the seal must be legible. Almost all notary seals in California are black ink, but other colors may be permitted as long as they are photographically reproducible. Even though other colors are permitted, we recommend black ink to minimize the chances of the document not being recorded. Notary embosser stamps may be used in California as long as the imprint is inked and photographically reproducible. Sometimes non-inked embossers are requested by clients and in particular might be used for documents that may be going outside of the United States, but using a non-inked embosser that does not leave a photographically reproducible image exclusively on the document will not be acceptable. 30