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Do I change the state in the certificate?

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Topic URL: http://www.123notary.com/forum/topic.asp?TOPIC_ID=5864
Printed on: 09/01/2014

Topic:


Topic author: fourmat1
Subject: Do I change the state in the certificate?
Posted on: 01/27/2013 6:10:40 PM
Message:

I would like to know if I change the state in a certificate wording if I am in another state. example - Certificate says "according to the laws of the State of California" and I am in Arizona.

Replies:


Reply author: edelske
Replied on: 01/28/2013 01:20:18 AM
Message:

The Notary Section is MY signed statement. If I don't like something in the wording (as in your example) I redact the offensive part (single line thru and MY initials) and write correct value nearby.


Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com


Reply author: LindaH
Replied on: 01/28/2013 04:24:08 AM
Message:

quote:
Originally posted by fourmat1

I would like to know if I change the state in a certificate wording if I am in another state. example - Certificate says "according to the laws of the State of California" and I am in Arizona.



Sounds like you're talking about the "under penalties of perjury" statement. I line through that completely and initial. That statement is not a required element in Florida notary certificates.

Linda
http://www.columbiacountynotary.webs.com


Reply author: middleVT
Replied on: 01/29/2013 07:23:29 AM
Message:

The acknowledgement certificate that is mandatory in California is showing up all over the place. It can be found at http://www.sos.ca.gov/business/notary/forms/notary_ack.pdf

In my state there is no mandatory wording for an acknowledgement, oath, or affirmation so the wording means whatever it seems to mean. If I were to sign a certificate that says, in part, "I certify under PENALTY OF PERJURY under the laws of the State of California Vermont that the foregoing paragraph is true and correct" a reader might interpret it as an affirmation, and I'm not allowed to administer an affirmation to myself. Thus, I attach a loose acknowledgement and don't use the CA style acknowledgement at all.

A signing service owner told me he was having problems with documents for California properties that were being notarized out of state; the notaries would strike out "California" and write in some other state, or strike out the perjury clause completely. The California recorders were rejecting the certificates with the strikeouts, but they were accepting loose certificates that had wording appropriate for the other state. That is why I attach a loose certificate rather than striking anything out.

What I will do is use a CA-style acknowledgement if the person who prepared the document left the perjury paragraph out completely.

middleVT


Reply author: tamra
Replied on: 01/29/2013 12:36:29 PM
Message:

In California you can use any acknowledgement verbage so long as it does not include a capacity ( President, secretary, VP etc.) However, if you are not sure your best bet is to attach a loose acknowledgemnt.

Tamra D Mode


Reply author: edelske
Replied on: 01/30/2013 11:53:49 PM
Message:

quote:
Originally posted by middleVT

The acknowledgement certificate that is mandatory in California is showing up all over the place. It can be found at http://www.sos.ca.gov/business/notary/forms/notary_ack.pdf

In my state there is no mandatory wording for an acknowledgement, oath, or affirmation so the wording means whatever it seems to mean. If I were to sign a certificate that says, in part, "I certify under PENALTY OF PERJURY under the laws of the State of California Vermont that the foregoing paragraph is true and correct" a reader might interpret it as an affirmation, and I'm not allowed to administer an affirmation to myself. Thus, I attach a loose acknowledgement and don't use the CA style acknowledgement at all.

A signing service owner told me he was having problems with documents for California properties that were being notarized out of state; the notaries would strike out "California" and write in some other state, or strike out the perjury clause completely. The California recorders were rejecting the certificates with the strikeouts, but they were accepting loose certificates that had wording appropriate for the other state. That is why I attach a loose certificate rather than striking anything out.

What I will do is use a CA-style acknowledgement if the person who prepared the document left the perjury paragraph out completely.

middleVT



I thought a notarization that was legally valid where performed was by definition acceptable in all states. Perhaps California will soon require out of state drivers to obtain a California driver license to drive there. Might be that the Apostille is the solution; it's intended to make notarizations done in one country acceptable in another.

Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com


Reply author: LindaH
Replied on: 01/31/2013 06:47:08 AM
Message:

Ken, I believe you're right - they ARE obligated to accept out-of-state certs providing no capacity is included. Some don't get it, though.

I had a signing the other night - CA company and CA property - they insisted I HAD to use the acks provided and the acks MUST contain the required CA verbiage or the recorder would kick it back. Since the CA acks contain all the elements we need in our certs in FL I didn't argue (though I'm not a fan of the "under penalty of perjury" clause)....it was a case of "pick my battles" and this one just wasn't worth pursuing. There was nothing in the cert that made it unacceptable in FL so I went ahead with it. The only "discussion" I did have was about the recorder, and I advised the hiring party that the recorders were required to accept it since it was notarized out of state - but again, not a battle worth lengthy discussion at the time.

Linda
http://www.columbiacountynotary.webs.com


Reply author: Lee-AR
Replied on: 01/31/2013 07:24:31 AM
Message:

Re: the 'penalty of perjury' clause per USA Constitution & CA law:

Excerpt from the United States Constitution:
Article 4, Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records,and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

And…

California’s own Law on the subject of out-of-state notarization.
(2) (b) Note italicized & boldfaced portion:

Civil Code § 1189.
(a) (1) Any certificate of acknowledgment taken within this state shall be in the following form:

State of California
County of __________

On ______________________________________________ before me,
(here insert name and title of the officer) ,
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.
Signature ____________________________________________ (Seal)

(2) A notary public who willfully states as true any material fact that he or she knows to be false shall be subject to a civil penalty not exceeding ten thousand dollars ($10,000). An action to impose a civil penalty under this subdivision may be brought by the Secretary of State in an administrative proceeding or any public prosecutor in superior court, and shall be enforced as a civil judgment. A public prosecutor shall inform the secretary of any civil penalty imposed under this section.

(b) Any certificate of acknowledgment taken in another place shall be sufficient in this state if it is taken in accordance with the laws of the place where the acknowledgment is made.
(c) On documents to be filed in another state or jurisdiction of the United States, a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law.

(d) An acknowledgment provided prior to January 1, 1993, and conforming to applicable provisions of former Sections 1189, 1190, 1190a, 1190.1, 1191, and 1192, as repealed by Chapter 335 of the Statutes of 1990, shall have the same force and effect as if those sections had not been repealed.



If you don't value your time and experience, nobody else will.


Reply author: LindaH
Replied on: 01/31/2013 08:07:57 AM
Message:

I know Lee - I tried to tell her it was law that CA had to accept it - just wasn't worth pursuing - since it didn't require anything illegal from me I let it go.

I don't think it's the company - there ARE documented cases of CA recorders rejecting docs because of it - was it right? No...but they do.

Linda
http://www.columbiacountynotary.webs.com


Reply author: middleVT
Replied on: 01/31/2013 08:25:58 AM
Message:

When I wrote "The acknowledgement certificate that is mandatory in California is showing up all over the place" I meant that the certificate that California notaries must use* is being put by title companies and lenders at the end of documents that will be executed outside California and the notarizations are being done by non-California notaries. I have completed notarizations for a number of documents that were to be recorded in California, and never had any complaints when I used the certificate that is suggested in the Vermont SOS notary manual.

*Yes, I understand that California notaries may notarize a certificate that is required in another state, so long as they don't notarize capacity and identify the signer in the manner required in California. But I have never heard of another state that won't accept the California all-purpose acknowledgement, provided it was a California notary who took the acknowledgement.

middleVT


Reply author: Lee-AR
Replied on: 01/31/2013 2:34:01 PM
Message:

I hear you, Linda. Some battles just aren't worth having. Whenever I see this in an Ack (even when they so nicely change it from CA to AR), I cross it out, initial & include the below info on a separate blue paper. So far/so good. And I do see that CA pop(as I call the Penalty Of Perjury clause)a lot!

To the best of my knowledge, no other state has any law even similar to this CA pop, so changing the wording from CA to any other state would be referencing a law that doesn't exist.

If you don't value your time and experience, nobody else will.


Reply author: edelske
Replied on: 01/31/2013 3:56:57 PM
Message:

I'm confused. To be "under penalty of Perjury" I thought one had to be "under oath" or in other words "sworn in". To the best of my understanding a common "LIE" (Not under oath/sworn) is not Perjury.

Thus, if Perjury is the penalty the statement (above) is "under oath" or sworn. Who gave the notary the oath? We all know a notary can not notarize their own statement. So it follows they cannot put themselves subject to Perjury.

Am I missing something?


Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com


Reply author: middleVT
Replied on: 02/01/2013 08:21:18 AM
Message:

quote:
Originally posted by edelske

I'm confused. To be "under penalty of Perjury" I thought one had to be "under oath" or in other words "sworn in". To the best of my understanding a common "LIE" (Not under oath/sworn) is not Perjury.

Thus, if Perjury is the penalty the statement (above) is "under oath" or sworn. Who gave the notary the oath? We all know a notary can not notarize their own statement. So it follows they cannot put themselves subject to Perjury.

Am I missing something?


Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com



There are lots of statements being signed by individuals without a notary that are under penalty of perjury. One example is your federal income tax return. Another is form W-9. But when a notary is acting in his official capacity rather than as an individual, can he sign such a statement (outside of California)? It seems unclear to me.

middleVT


Reply author: edelske
Replied on: 02/01/2013 2:01:12 PM
Message:

MiddleVT,

Your tax form is a great example. I know it says it - but the question remains and my comments still hold. How can the tax form be "under penalty of Perjury" if it is not a sworn statement. It may be false and deceptive but I don't see Perjury being in effect.

I just checked Wiki (search perjury) and it agrees with you:

The rules for perjury also apply when a person has made a statement under penalty of perjury, even if the person has not been sworn or affirmed as a witness before an appropriate official. An example of this is the United States' income tax return, which, by law, must be signed as true and correct under penalty of perjury (see 26 U.S.C. § 6065). Federal tax law provides criminal penalties of up to three years in prison for violation of the tax return perjury statute. See: 26 U.S.C. § 7206(1)


Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com


Reply author: middleVT
Replied on: 02/02/2013 09:17:21 AM
Message:

It appears that a person who signs and files a tax return, knowing it to be false, would have violated 26 U.S.C. § 7206(1). See http://www.justice.gov/tax/readingroom/2008ctm/CTM%20Chapter%2012.htm#TOC1_1, the part just after the table of contents.

middleVT


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