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Being a Notary Public in California.doc

VIEWS: 220 PAGES: 70

									This is the required course for the
       Secretary’s 2008 test




Being a Notary Public in

          California



       Apollo Correspondence Classes




                     1
                     Copyright 2005 Apollo Correspondence Classes
                                     2nd Edition 2007
                New material Copyright 2007 Apollo Correspondence Classes

This course is presented entirely over the Internet. Students of Apollo Correspondence Classes
             are permitted to make printed copies of this course for their own use.
                         All other rights under copyright are reserved.



                               Apollo Correspondence Classes
                                    3004 Deodar, Suite B
                                  Costa Mesa, CA 92626

                                  apollo@mansfieldfc.com

             This course has been approved by the California Secretary of State.


                                          Disclaimer

    The material in this book should not be construed as legal advice. Properly qualified
  professionals should be consulted for the legal ramifications of any particular fact pattern.


                                           Questions

      If you have any questions about the material or the course, please e-mail them to
                                 Apollo@mansfieldfc.com.




                                               2
       Table of Contents
1    Procedures                      5
2    What is a Notary Public?        6

3    Qualifying to Be a Notary       8
     Public

4    Where Can a Notary Public      12
     Practice?

5    A Notary is Not an Attorney    15

6    The Notary‟s Seal              18

7    The Notary‟s Records           21

8    The Acknowledgement            26

9    The Jurat                      33

10   There‟s Always an Exception:   37
     No Personal Appearance

11   Signature By Mark              39

12   Advertising                    41

13   Confidential Marriages         47

14   What a Notary Can Charge       50

15   The Notary‟s Duty to Perform   54

16   Getting Into Trouble           57

17   Signing Mortgage Loan          66
     Documents

18   What to Do Next                69




                   3
                      Thanks

Apollo Correspondence Classes expresses appreciation
        to Barry for his thoughtful assistance.




                         4
                                          Chapter 1:

                                          Procedures

                                      Studying Via the Web

       Congratulations! You have chosen to complete continuing education via the web,
allowing you to study at your own pace, when and where you want.

       Studying via the web, though, is not like reading a novel. You‟ll need to read each
chapter several times and think about it before you‟re ready to pass the state test.

                                           Identification:

        The Secretary of State requires the school to verify the identity of its students. Following
completion of the course, the student must submit a copy of the student‟s driver‟s license (or
other photo identification) and, a signed Declaration or Certification Under Penalty of Perjury
(available on the school‟s web site: http://mansfieldfc.com/notary/declaration.html) to the
school.

                                              Privacy:

        The school has taken steps to ensure “that the information contained in the certificate of
completion pursuant to subdivision (c) of Section 20800.5 of the California Code of Regulations
cannot be viewed by any person other than the approved vendor issuing the certificate, an
employee, agent, instructor, contractor, or subcontractor of the approved vendor issuing the
certificate, or the notary public applicant or notary public named in the certificate.” These
measures include computer password protection and scanning and restricting access to areas
where records are kept to authorized persons.

                                              Refunds

        “An approved vendor shall refund all fees within thirty (30) business days of a scheduled
course date to any notary public applicant or notary public who registered to attend an approved
course of study if one of the following occurs: (1) an instructor fails to appear at the scheduled
time, date, and place of the approved course of study; or (2) an approved course of study is
delayed in starting more than fifteen minutes (15) after the scheduled time, a notary public
applicant or notary public immediately informs the approved vendor of his or her request for a
refund, and leaves the approved course of study prior to it starting.” 20800.9 (b) California Code
of Regulations.




                                                 5
                                                Chapter 2:

                                    What is a Notary Public?
        The office of notary is said to go back to the Roman Empire and indeed the right to
appoint notaries in England was reserved to the pope as late as 1533.1 Affixing a seal as part of
the notary‟s function dates from the Roman period.2

        The examination of notaries before being commissioned was being done in Scotland in
the late 1500s.3

        The first American notary was Thomas Fugill, commissioned in 1639.4

       Being a notary public is a restricted, regulated profession; it is a misdemeanor to claim to
be a notary when one is not.

        In California, the primary responsibility for overseeing notary publics belongs to the
Secretary of State. The first Secretary, William Van Voohies, took office on December 21, 1849.
As of this writing, the current Secretary is Debra Bowen. She is the 30th Secretary and the 3rd
woman to hold that office. Formerly working as a lawyer and then legislator, Ms. Bowen took
office as Secretary of State in 2007. Her current term expires in 2011.




1
  Wikipedia, Notary public, 2005, http://en.wikipedia.org/wiki/Notary_public. Another source suggests that the
function of a notary public as it is known in California today dates from the Middle Ages: Pedro A. Malavet,
“Counsel for the Situation: The Latin Notary, A Historical and Comparative Model,” Spring 1996, Hastings
International and Comparative Law Review, http://www.nacln.org/FILES-
HTML/19960000%20Art%20HICLR%20Malavet%20re%20Counsel%20for%20the%20Situation.htm
2
  Wyoming Secretary of State, Wyoming’s Notaries Public—History, 1999,
http://soswy.state.wy.us/notary/history.htm
3
  Anonymous, Chapter 1—History and Development of Land Registration, undated,
http://www.ros.gov.uk/rotbook/ROTBook_24.html
4
  Nell B. Chambers, Notaries Public: A Brief History and Ethical Considerations, March 2005, Advisor,
http://www.bdblaw.com/nlgraphics/March2005printversion.htm


                                                        6
                                 Chapter Highlights:

   The office of notary dates from Roman times.

   The first America notary was commissioned in 1639.




                                           7
                                              Chapter 3:

                             Qualifying to Be a Notary Public
        The State of California has six requirements for one to qualify as a notary public.

        The applicant must be a resident of the state of California. It is not necessary, however, to
be a citizen of the United States. The US Supreme Court decided that issue in 1984.5

        The applicant must be a minimum of 18 years old.

        The applicant, after July 1, 2005, must pass a course approved by the Secretary of State.

        The applicant has to pass a test. Although the ability to read, write and understand
English is not a legal requirement, the Secretary indicates such ability is needed to pass the
written exam.

       At the time of the exam, the application to become a notary public is submitted. The
application—except for the applicant‟s name and address—is confidential. Other information on
the application will only be released to the applicant, the applicant‟s representative or a
government employee or officer acting in official capacity. A PO box or commercial equivalent
may be listed on the application as a mailing address but physical addresses for business and
residence must also be given. A 2” by 2” passport photo must be submitted with the application.

        Finally, the applicant has to pass a background check. For this purpose, fingerprints are
taken. Instructions on how to give fingerprints are sent to applicants who pass the exam. The
California Department of Justice will check state records and forward the fingerprints to the
Federal Bureau of Investigation for a check of federal records. The state Department of Justice
will report both findings to the Secretary. The Secretary is then also notified of any future arrests.

        It is possible to shield certain convictions under 1203.4 of the Penal Code but this doesn‟t
apply to the notary public application—disclosure must be made. A copy of one‟s criminal
record can be obtained from the Department of Justice at
http://caag.state.ca.us/fingerprints/security.htm. This requires a set of fingerprints and $25.6 If
the background investigation reveals any conviction not on the application—even a conviction
that would not normally be a problem to becoming a notary public—the Secretary may deny the
application. Otherwise, a felony conviction or a misdemeanor where less than 10 years has
passed since the satisfactory completion of probation will bar the application. There is an appeals
procedure.

        Any “substantial and material misstatement or omission” on the application can be cause
for denial or, if discovered later, revocation of the commission. Areas to watch include (but are

5
 Wikipedia, Notary public, 2005, http://en.wikipedia.org/wiki/Notary_public
6
 Office of the Attorney General, Fingerprint Submissions Criminal Records Review, 2001,
http://caag.state.ca.us/fingerprints/security.htm


                                                       8
not limited to) date of birth, Social Security number, driver‟s license or identification card,
citizenship or alien registration, “prior court ordered judgments” (such as small claims actions or
civil actions), any administrative or criminal action taken under any license the notary has held
(such as being commissioned as a notary public or licensed as a real estate agent or broker,
lawyer, doctor, insurance or contractor), and all names past and present (including maiden name
or a court sanctioned name change). The notary should carefully double-check all information
entered and also consider whether all possible disclosures have been made. Ignorance is not bliss
when talking to the Secretary of State.

        The situation on reporting convictions is nuanced. Generally everything should be noted.
“The only exceptions are traffic infractions, any offense which was finally adjudicated in a
juvenile court or under a youthful offender law, and any incident that has been sealed under
Welfare and Institutions Code Section 781 or Penal Code Section 1203.45 (JUVENILE
OFFENSES).” Notice if the incident sealed under 1203.45 PC occurred while one was an adult,
it must be disclosed. Arrests for which trials are pending must be disclosed.

       A felony conviction is a permanent bar to a commission.

        A conviction of a misdemeanor of moral turpitude or of a nature incompatible with the
duties of a notary public is a bar to a commission unless 10 years have passed since the end of
probation and the Secretary determines the applicant “has the requisite honesty, credibility,
truthfulness, and integrity to fulfill the responsibilities of the position.” The list of possible
offenses here is quite broad (and not exclusive—others may fit): accessory, arson-related
offenses, assault, auto theft, battery, burglary, carrying a concealed weapon, carrying a loaded
firearm in a public place, child molestation, child pornography, conspiracy, discharge of a
firearm in a public place or into an inhabited dwelling, drugs (possession for sale and sale),
embezzlement, escape without force, failure to comply with a court order, failure to pay child
support, failure to return to confinement, false financial statements, false imprisonment, forgery,
fraud (involving, but not limited to, bank cards, credit cards, insufficient funds/checks, insurance,
mail, Medi-Cal or Medicare, real estate, tax, and welfare), fraudulent impersonation of a peace
officer, hit and run, kidnapping-related offenses, manslaughter, pimping and pandering,
possession of an unregistered firearm, practicing without a license when a license is required,
prostitution, rape, receipt of stolen property, resisting or threatening a peace officer, robbery,
solicitation, statutory rape, tax evasion, terrorist threats, theft (grand and petty, including
burglary and robbery), threats to commit a crime involving death or great bodily injury.

        In particularly egregious cases, the Secretary may permanently deny an application and
return any subsequent applications from that person.

       Chapter 16 contains a detailed list of further reasons the Secretary may deny an
application.

       Applicants on a military or naval reservation must have the recommendation of the
reservation‟s commanding officer, be a federal civil service employee and be a citizen of the
United States.




                                                 9
       Once a commission is issued, the applicant has 30 calendar days to file an oath of office
and secure a $15,000 surety bond. Despite the bond, the notary public is still personally liable for
any damages caused by the notary public‟s misconduct or negligence.

        Both are filed with the county clerk’s office, not with the Secretary of State, just to keep
things interesting. The web site for any particular county can be found at the California State
Association of Counties‟ web site at http://www.csac.counties.org/default.asp?id=7. The
prospective notary must file this paperwork in the county of “principal place of business.” The
paperwork must reach the county clerk within the 30 day period—just having it in the mail is not
enough. Going down to the post office to have them put the green card on the envelope (returned
to prove the mail was received) is probably a good idea here. “The check is in the mail” story” is
not enough.

       The cost for the bond is not great—one company quotes $19 for a year.7 Additional
malpractice insurance is available; one company provides $100,000 of insurance for an annual
$195.8

        A notary‟s commission lasts 4 years from the date on the commission. The notary should
take the exam for reappointment 6 months before the expiration of the current commission.
Fingerprints will be taken as part of the re-commission process and these will be submitted to the
California Department of Justice and the Federal Bureau of Investigation.

        If the notary‟s name changes, a form must be filed with the Secretary of State. (The
Secretary says a reasonable period for doing so is within 30 days.) Once the amended
commission with the new name is issued, the notary has 30 days to file a new oath and amended
bond with the county clerk. The amended commission with the name change shall not take effect
unless the filing is completed within the 30-day period, and the amended commission with the
name change takes effect the date the oath and amendment to the bond is filed with the county
clerk. Willfully failing to notify the Secretary of a name change is an infraction punishable by a
fine not to exceed $500.

       There is a continuing education requirement for notaries. Each notary renewing the
commission on or after July 1, 2005 will be required to take a 6 hour course. The education
requirement also applies to new or newly appointed notaries public. Subsequently, a 3 hour
course will be required for renewal.

        A notary desiring to resign the commission notifies the Secretary of State in writing and
delivers within 30 days all the notary‟s “notarial records and papers” to the county clerk where
the notary filed his oath. The seal must be destroyed.

      A notary on a military or naval reservation who ceases to be a federal civil service
employee is considered to have resigned the notarial commission. The commanding officer of

7
  National Notary Association, Notary Errors and Omissions Insurance: California, 2005,
http://www.nationalnotary.org/supplies/index.cfm?categoryID=9&state=California
8
  National Notary Association, Notary Errors and Omissions Insurance: California, 2005,
http://www.nationalnotary.org/supplies/index.cfm?categoryID=9&state=California


                                                      10
that reservation will notify the Secretary of State with 30 days of the loss of status. To be safe,
the notary probably ought to notify the Secretary in writing as well. As with a resignation, the
notary must deliver all “notarial records and papers” to the county clerk where the notary filed
his oath and destroy the seal.




                                                 11
                                   Chapter Highlights:

   There are 6 requirements to be a notary in California.

   Full disclosure should be made on the application. This is not the time to be cagey.




                                            12
                                                 Chapter 4:

                                Where Can a Notary Practice?

       A notary can practice anywhere in California, not just in the county where the oath and
bond are filed.9

        The notary is required to advise the Secretary of State in writing within 30 days by
certified mail of moving either the business or residence address. There is a form available for
this notification from the Secretary of State or it may be made by letter. The following
information is recommended: name of the notary as it appears on the commission, the number
and expiration date of the commission, whether it is the business or residence address that is
changing and whether the change is for mailing purposes only, the new address, the notary‟s
signature, and the date. If changing the business address, include the business name. Although
not explicitly mentioned in the Handbook, it is clear from the details of the letter that the
Secretary expects to be notified if the notary does not move but desires a change in where the
mail comes.

        The law says these addresses cannot be a post office box or commercial equivalent unless
the Secretary is also given a physical residence address. In response to a question, the Secretary
has said that while mail may be directed to a PO box or equivalent, physical addresses for both
business and residence must be furnished to the Secretary (to establish proper county for filing
oath and bond and to determine California residency.)

        Willful failure to notify the Secretary of a change of address is an infraction punishable
by a fine not to exceed $500.

       If moving to a new county, filing a new bond and oath with the new county clerk is not
required, though permissible.

       A notary appointed on a military or naval reservation can only notarize on that
reservation.




9
 The French, by contrast, at one time, confined a notary‟s practice to a particular geographic area, providing one
notary for every 6,000 people: Pedro A. Malavet, “Counsel for the Situation: The Latin Notary, A Historical and
Comparative Model,” Spring 1996, Hastings International and Comparative Law Review,
http://www.nacln.org/FILES-
HTML/19960000%20Art%20HICLR%20Malavet%20re%20Counsel%20for%20the%20Situation.htm


                                                         13
                                  Chapter Highlights:

   The notary can practice anywhere in the state.

   The Secretary must be notified of any change in the notary‟s address.




                                            14
                                              Chapter 5:

                                A Notary is Not an Attorney

       A notary cannot offer any legal advice—cannot draft documents, suggest forms, help
prepare paperwork. Any requests to do so should be referred to any attorney. In 1958, the
California Supreme Court upheld a judgment against a notary who drafted a will.10 On the other
hand, an attorney was disciplined in 2001 for claiming he was a notary public when he was not!11

        A notary who attempts to practice law without a license can lose the commission.

        If the client has an incorrect view of the scope of the notary‟s duties, the notary must
correct the misapprehension. Clients who are familiar with a Latin American culture may have a
different view of notaries public. In that framework, the notary serves as an advisor (though not
an advocate—does not appear in court) to all the parties.12 In those countries, the notary drafts
documents for clients and keeps copies of those documents.13 The notary there is generally the
graduate of a university law school and has served an apprenticeship.14 The Latin notary has an
obligation to search the public records regarding a transaction and to inform all parties of any
findings.15 The California notary does not give advice, draw up documents, or store copies of
what is notarized; nor is a law school education required. The California notary does not do
outside research in completing a notarization.

        A notary should decline to notarize a will unless an attorney recommends that the notary
do so. Persons asking for the notarization of a will should be advised to seek the advice of an
attorney.

        A notary can notarize immigration forms but, of course, cannot assist in filling them out
(unless the notary is authorized to do so by another function, such as having qualified to be an
immigration consultant under the Business and Professions Code). There is a limit of $10 for this

10
   Supreme Court of California, Vinka Biakanja, Respondent, v. Thomas J. Irving, Appellant., 1958,
http://www.jura.uni-bonn.de/institute/ipr/Anglo-amerikanisches%20Recht/Biakanja.html
11
   State Bar of California, California Bar Journal, January 2004,
http://www.calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney+Resources/California+Bar+Jo
urnal/January2004&MONTH=January&YEAR=2004&sCatHtmlTitle=Discipline&sJournalCategory=YES
12
   Pedro A. Malavet, “Counsel for the Situation: The Latin Notary, A Historical and Comparative Model,” Spring
1996, Hastings International and Comparative Law Review, http://www.nacln.org/FILES-
HTML/19960000%20Art%20HICLR%20Malavet%20re%20Counsel%20for%20the%20Situation.htm
13
   Pedro A. Malavet, “Counsel for the Situation: The Latin Notary, A Historical and Comparative Model,” Spring
1996, Hastings International and Comparative Law Review, http://www.nacln.org/FILES-
HTML/19960000%20Art%20HICLR%20Malavet%20re%20Counsel%20for%20the%20Situation.htm
14
   Pedro A. Malavet, “Counsel for the Situation: The Latin Notary, A Historical and Comparative Model,” Spring
1996, Hastings International and Comparative Law Review, http://www.nacln.org/FILES-
HTML/19960000%20Art%20HICLR%20Malavet%20re%20Counsel%20for%20the%20Situation.htm
15
   Pedro A. Malavet, “Counsel for the Situation: The Latin Notary, A Historical and Comparative Model,” Spring
1996, Hastings International and Comparative Law Review, http://www.nacln.org/FILES-
HTML/19960000%20Art%20HICLR%20Malavet%20re%20Counsel%20for%20the%20Situation.htm


                                                     15
service if the notary is simply a notary. The fee limitation of $10 is per individual for each set of
forms.




                                                 16
                                    Chapter Highlights:

   A notary cannot practice law.

   A notary cannot fill out immigration forms.




                                            17
                                             Chapter 6:

                                       The Notary’s Seal

     Affixing a seal as part of the notary process is a very ancient procedure, dating from
Roman times.16 The California notary public must have and use a seal.

      California requires the seal be kept in a secure and locked location, not available to
anyone besides the notary. Even if the employer paid for the seal and the notary leaves that
employer, the seal must not be surrendered to the employer.

        The notary‟s willful failure to keep the seal under the notary‟s direct and exclusive
control or the notary‟s willful surrender of the seal to any person not authorized to possess it is a
misdemeanor. Prosecution for this offense must be brought within 4 years of the commission of
the offense or the discovery of the commission, whichever is later. Other remedies may be
available.

        The composition of the seal is tightly defined. It has to be capable of showing up on a
photo made of the document. It must legibly contain the state seal and “Notary Public.” The
notary‟s name (as it is given on the commission) and the name of the county where the oath and
bond were filed have to appear. The seal has to have the expiration date of the notary‟s
commission and both the notary‟s identification number as well as that of the seal‟s
manufacturer. There are size requirements (maximum of 2 inches in diameter if circular,
maximum of 1 inch by 2 ½ inches if rectangular.) The seal must have a serrated or milled edge
border. Fortunately, vendors produce stamps which meets all the conditions for under $20 (save
the receipt for the income tax forms.) A notary can only purchase a seal from a manufacturer
authorized by the Secretary of State to produce notary seals. A notary must present an authorized
seal manufacturer with a Certificate of Authorization in order to have a notary seal produced.
Failure to secure the seal in this manner is grounds for revocation of a notary‟s commission.

        The clarity of the image the seal produces on the page is important. Documents which
later need recording could be refused on the basis of an illegible seal or of a part of the seal being
unreadable. Likewise, the seal image should not obscure any writing or printed matter.

       California subdivision maps may be notarized without a seal. Besides the notary‟s
signature on the acknowledgement, in this case, must be entered the notary‟s name, county of
principal place of business and expiration date of commission. This information must be below
or immediately beside the signature. The Secretary advises this is the only instance where the
notary can authenticate an official act without a seal.




16
  Wyoming Secretary of State, Wyoming’s Notaries Public—History, 1999,
http://soswy.state.wy.us/notary/history.htm


                                                    18
        The seal must only be used for official notary public purposes. It must be destroyed once
the notary‟s commission expires. The seal must also be destroyed if the commission is
terminated, if the notary resigns the commission, or if the commission is revoked.

        Any notary whose official seal is lost, misplaced, destroyed, broken, damaged or is
rendered otherwise unworkable shall immediately mail or deliver written notice of that fact to the
Secretary of State. Include a copy of the police report if there is one. The Secretary of State,
within five working days after receipt of the notice, if requested by the notary, shall issue a
certificate of authorization which a notary may use to obtain a replacement seal.




                                               19
                                    Chapter Highlights:

   A notary must carefully guard the seal and not allow others to use it.

   The clarity of the seal‟s imprint is important.




                                             20
                                                   Chapter 7:

                                         The Notary’s Records

        The law requires a notary to keep one active sequential journal at a time of all official
acts performed as a notary public. Like the seal, it must be kept in a secure and locked location,
available only to the notary. The Secretary may bring administrative action against the notary‟s
commission if the notary fails to secure the journal.

           Also like the seal, the journal is tightly defined. These elements are:

       o the date, time and type of each official act
       o what the instrument was
       o the signature of the person whose signature is being notarized
       o the type of document used for satisfactory evidence (and the issuing governmental
                     agency, the identifying number and the issuing or expiration date—see
                     chapters on acknowledgement and jurat for details) and signature of the
                     credible witness if one was used.
       o if identity was established by two credible witnesses, the type of identifying documents
                     (including identifying numbers and issuing or expiration dates)
       o the fee charged for the notary‟s service.
       o right thumbprint of the person who signature is being notarized if the document to be
                     notarized is a deed, quitclaim deed, deed of trust affecting real property or
                     power of attorney document (except a deed of reconveyance or a trustee‟s
                     deed resulting from a decree of foreclosure or a nonjudicial foreclosure)

       If the right thumbprint is not available, use the left thumbprint or, failing both of those,
any available finger. If the party cannot supply any finger, the notary should so note and provide
an explanation in the journal.

        Failure to obtain the thumbprint is subject to a civil penalty not to exceed $2,500 which
may be sought either in an administrative action brought by the Secretary of State or in superior
court by the public prosecutor who will report any penalty imposed to the Secretary. The penalty
shall be enforced as a civil judgment.

       A four year statute of limitations applies to prosecution for failing to obtain a thumbprint.
Note the statute of limitations can begin to run from the commission of the offense or the
discovery of the offense, whichever is later (the wrongdoing might be discovered long after it
was committed.)

         The FBI recommends that fingerprints be taken with the equipment 39 inches off the
floor.17 This may not be possible in a loan signing situation where the signers are typically


17
     Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html


                                                          21
seated. Make sure the finger is clean and dry.18 Providing an alcohol swab prior to printing
ensures cleanliness; the finger should then be dried.19 The person to be fingerprinted should be
asked to relax and look at some distant object so they will not concentrate on what the notary is
doing.20

       If any cuts or abrasions are apparent on the individual‟s hand or fingers, the notary may
want to wear latex gloves. This is a common procedure when police departments use ink to
produce fingerprints.

       The notary should take the individual‟s right hand at the base of the thumb with the
notary‟s right hand.21 The notary‟s hand should cover the individual‟s fingers, tucking under
everything except the thumb.22 Guide the thumb with the notary‟s left hand.23

        Roll the finger on the pad.24 “The ink should cover from one edge of the nail to the other
and from the crease of the first joint to the tip of the finger.”25 Ink should evenly cover the
appropriate finger area but too much will obscure details and too little will not record features.26
The correct rolling technique recording the inked finger onto paper can be seen in a video at
www.fbi.gov/hq/cjisd/takingfps.html.27 The finger must be rolled evenly and from nail to nail.28
Lift the finger afterwards to avoid smudging.29

        The person may have either a worn down surface on the finger or a rough one.30 Lotion
may be used prior to fingerprinting and then wiped off before inking to improve the process.31
This also works for dry, flaky fingers.32 For persons with finger ridges which are very thin or
worn, little pressure and ink are used.33 “A technique known as „milking the fingers‟ can be used
to raise the fingerprints prior to fingerprinting. The technique involves applying pressure or
rubbing the fingers in a downward motion from palm to fingertip.”34

        The notary must maintain exclusive control of the journal and seal. These must not be
lent out or left unattended where others could have access to them. Failure to so protect these
items could lead to revocation of the commission.


18
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
19
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
20
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
21
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
22
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
23
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
24
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
25
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
26
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
27
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
28
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
29
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
30
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
31
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
32
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
33
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html
34
   Federal Bureau of Investigation, Taking Legible Fingerprints, undated, http://www.fbi.gov/hq/cjisd/takingfps.html


                                                        22
        A photocopy of a line item must be provided by the notary to any member of the public
who requests it in writing and who pays the fee (not to exceed 30 cents per page.) The written
request must identify the names of the parties, the type of document, and the month and year
when the document was notarized. The notary must respond to the request within 15 business
days of receipt. The notary must supply a photostatic copy or report that no such line item exists.
If the notary takes longer than 15 business days and faces a disciplinary hearing, “unavoidable,
exigent business or personal circumstances” may be used as a defense.

        The Secretary of State must be immediately notified by certified or registered mail if the
journal is stolen, lost, misplaced, destroyed, damaged or otherwise becomes unusable. Include
the period covered by the journal, the notary‟s commission number and expiration date, and (if
stolen) a copy of the police report. If a notary leaves an employer, the employer does not get the
journal, even if the employer paid for it.

        The Secretary of State is entitled to examine any of a notary‟s paperwork related to
official notarial acts. Upon written request, a notary is required to furnish to the Secretary of
State certified copies of the notary‟s journal. In addition, it is the duty of a notary to respond
within thirty days of receiving written requests sent by certified mail from the Secretary of
State‟s office for information relating to official acts performed by the notary.

         If a notary public resigns, is disqualified, removed from office, or allows his or her
appointment to expire without obtaining reappointment within thirty days, then the journal(s)
must be delivered to the county clerk in which the notary public‟s current official oath of office
is on file. Failure to do so is a misdemeanor so the notary may want to purchase proof of delivery
from the post office. If the notary chooses not to seek reappointment, delivery of all notarial
records and papers to the county clerk must occur within 30 days of the commission‟s expiration.

        The notary does not turn a journal into the county when the journal becomes full. The
notary must maintain all journals until the notary resigns, is disqualified, removed from office or
allows the commission to expire without reappointment.

        The notary public shall not surrender the journal to any other person (including an
employer, even if the employer paid for the journal), except the county clerk as defined by
Section 8209, or to a peace officer acting upon reasonable suspicion the journal contains
evidence of a criminal offense and probable cause and in the officer‟s official capacity and
within the officer‟s authority. If the journal is not present for immediate surrender, the notary
must supply it to the peace officer as soon as possible. Notice a peace officer no longer needs a
criminal search warrant to seize a notary‟s journal. The peace officer must furnish the notary
with a receipt for the journal. Willful failure to provide access the journal to a peace officer who
requests it can result in the suspension or revocation of a notary‟s commission and is subject to a
civil penalty not to exceed $2,500 which may be sought either in an administrative action
brought by the Secretary of State or in superior court by the public prosecutor who will report
any penalty imposed to the Secretary. The penalty shall be enforced as a civil judgment.




                                                  23
        The Secretary is notified by the police officer of the notary public‟s name whose journal
was seized and by the notary. The notary‟s notification, to be made within 10 days, must include
the period of the journal entries, the commission number of the notary public, the expiration date
of the commission, and a photocopy of the receipt. The notary public shall obtain a new
sequential journal. If the relinquished journal is returned to the notary public after a new journal
has been obtained, the notary public shall make no new entries in the returned journal.

        A notary public who is an employee shall permit inspection and copying of journal
transactions by a duly designated auditor or agent of the notary public‟s employer, provided that
the inspection and copying is done in the presence of the notary public and the transactions are
directly associated with the business purposes of the employer. The employer may request copies
from the notary of all transactions directly related to the employer‟s business and the notary will
provide such; unrelated transactions are confidential. The employer must keep any such copies
confidential. The notary will not surrender the journal to the employer at any time, not even
when employment ends, no matter who paid for the journal

        The notary public shall provide the journal for examination and copying in the presence
of the notary public upon receipt of a subpoena duces tecum or a court order, and shall certify
those copies if requested.

        The notary public is guilty of a misdemeanor if the notary willfully fails: to properly
maintain the journal; to notify the Secretary of State if the journal is lost, stolen, rendered
unusable or surrendered to a peace officer; or to permit a lawful inspection or copying of the
journal.




                                                 24
                                    Chapter Highlights:

   All official acts must be recorded in a journal.

   The notary must not lend out or place the journal where others have access to it.




                                             25
                                          Chapter 8:

                                 The Acknowledgement
        What the legal pad is to the lawyer and lotion to the masseuse, so is the
acknowledgement to the notary public. The notary uses the acknowledgement to certify 3
things: that the notary saw the signer before him on the date and in the county indicated, the
identity of the signer and that the signer acknowledged executing the document. The journal
must indicate how the identity of the signer was established.

      The notary must have “satisfactory evidence that the person making the
acknowledgement is the individual who is described in and who executed the instrument.”

       “Satisfactory evidence” requires 2 parts.

       First, the notary must have the absence of any suspicion that would lead a reasonable
person to believe the person was faking identity.

       Second, one of the following circumstance must also be present:

        Possibility A. The oath or affirmation of a credible witness (not under penalty of perjury)
that the person making the acknowledgement (1) is personally known to the witness, (2) is the
person named in the document, (3) does not have a California Department of Motor Vehicles-
issued driver‟s license or identity card; United States or foreign passport; driver‟s license from
another state, Canada or Mexico; or an identification card issued by another state, any branch of
the US Armed Forces or by the California Department of Corrections and Rehabilitation (if the
inmate is in custody). Further, the credible witness must affirm (4) that the witness reasonably
believes the person making the acknowledgement would find it very difficult or impossible to
“obtain another form of identification” and (5) that the credible witness does not have a financial
interest, and is not named, in the acknowledgement.

        The identity of the credible witness must (1) be personally known to the notary and (2)
proven by a California Department of Motor Vehicles-issued driver‟s license or identity card;
United States or foreign passport; driver‟s license from another state, Canada or Mexico; or an
identification card issued by another state, any branch of the US Armed Forces or by the
California Department of Corrections and Rehabilitation (if the inmate is in custody).

        Possibility B. The oath or affirmation under penalty of perjury of two credible witnesses
whose identities are not personally known to the notary that the person making the
acknowledgement (1) is personally known to the witnesses, (2) is the person named in the
document, (3) does not have a California Department of Motor Vehicles-issued driver‟s license
or identity card; United States or foreign passport; driver‟s license from another state, Canada or
Mexico; or an identification card issued by another state, any branch of the US Armed Forces or
by the California Department of Corrections and Rehabilitation (if the inmate is in custody).
Further, the credible witnesses must affirm (4) that the witnesses reasonably believe the person



                                                26
making the acknowledgement would find it very difficult or impossible to “obtain another form
of identification” and (5) that the credible witnesses do not have a financial interest, and are not
named, in the acknowledgement.

        The identities of the credible witnesses must proven by a California Department of Motor
Vehicles-issued driver‟s license or identity card; United States or foreign passport; driver‟s
license from another state, Canada or Mexico; or an identification card issued by another state,
any branch of the US Armed Forces or by the California Department of Corrections and
Rehabilitation (if the inmate is in custody).

        Possibility C. The notary may see any of the following identification for the person
making the acknowledgement (if reliance is reasonable. If a driver‟s license photo is taped onto
the license, the notary might be wary): a California Department of Motor Vehicles-issued
driver‟s license or identity card; United States or foreign passport; driver‟s license from another
state, Canada or Mexico; or an identification card issued by another state, any branch of the US
Armed Forces or by the California Department of Corrections and Rehabilitation (if the inmate is
in custody).

        In all of the above cases, the California driver‟s license or identification card and the US
passport must be current or issued within the last 5 years. The other documents must also be
current or issued within the last 5 years and also contain photograph, description, and signature
of the person and an identifying number. The foreign passport must be stamped by the United
Stats Immigration and Naturalization Service. The Secretary advises that a stamp by the United
States Citizenship and Immigration Services is also acceptable.

        A notary who fails to secure satisfactory evidence (as defined above) is subject to a civil
penalty of not more than $10,000. The penalty may be pursued by the Secretary in an
administrative action or by a public prosecutor in superior court. The public prosecutor shall
report any civil penalty to the Secretary. The penalty shall be enforced as a civil judgment.

       The acknowledgement “taken within” California must 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)




                                                          27
       If a document contains a proposed “certificate of acknowledgment,” the
wording must be exactly the same as given above. If it is not, a proper certificate
of acknowledgment must be used.

        For “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.

       Likewise, any acknowledgement taken outside the state will work in
California if it was taken in accordance with the laws of the place where it was
made.

        One of the easiest, sure-fire ways to get into real trouble as a notary public is to notarize
something for someone who is not present before the notary. Notaries occasionally do this as a
favor for a friend or employer. The person needing the notary cannot mail the notary the
document to be notarized and expect service when that person is not present. This is true even if
the client is known to the notary.

        A notary in another state was fired by her employer, a car dealer, for refusing to notarize
documents without the customer/signer being present.35 She sued for wrongful termination and
was awarded back wages because the employer had ended her employment for failure to perform
an illegal act.36

        A Florida notary notarized absentee ballots without the voters being in front of her.37 The
court assessed damages against her of $30,000 (later reduced to $5,000 for her inability to pay
the larger amount.)38

       A new wrinkle to the personal appearance before the notary is the offer by some
companies to notarize by fax.39 The National Notary Association notes this fails the personal
appearance test.



35
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
36
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
37
   Anonymous, Order in the Court, undated,
http://www.myflorida.com/eog/notary_educate/newslett/current/order_court.html
38
   Anonymous, Order in the Court, undated,
http://www.myflorida.com/eog/notary_educate/newslett/current/order_court.html
39
   Nevin Barich, Notarizing by Fax: Illegal and Unsafe, undated, National Notary Association,
http://www.nationalnotary.org/news/index.cfm?Text=newsNotary&newsID=611. Sample company offering
notarization by fax: http://faxnotary.com/


                                                            28
        Neglecting to check identity paperwork from the signer is another problem area. A notary
notarized a deed transferring real property without checking the identity of the signer.40 The
signer immediately sold the property and absconded.41 The signer had forged the name of the
real owner to the deed.42 When the actual owner found out his property had been lost, he sued the
notary and the notary‟s (former?) employer, recovering $230,000.43

        Note that if the notary is preparing an acknowledgement form, the subject document need
not be signed in the notary‟s presence. “In an acknowledgment, the signer is
acknowledging that he/she executed the document, not that they executed the document
in your presence.”

         The full completion of the certificate of acknowledgement, the notary‟s signature and the
seal must all be done in the same session. Negligently failing to complete the acknowledgement
at the time the notary completes the acknowledgement and affixes the seal can lead to a
suspension of at least 6 months and a civil penalty of no more than $750. Willfully doing so may
involve revocation of the license and the same maximum fine. The notary at this time may fill
out forms required by other states as long as these forms do not require the notary to make a
determination not allowed under California law.

        The certificate of acknowledgement is executed under penalty of perjury. If a notary
knows any material fact to be false but states it as true, the notary can be subject to a civil
penalty of up to $10,000. Examples of this misbehavior are backdating an acknowledgement,
executing an acknowledgement for a person not present before the notary, or accepting
inappropriate identification (for example, a Social Security card) for an acknowledgement. The
Secretary may seek to impose the civil penalty in an administrative action or the public
prosecutor may file an action in superior court. The public prosecutor will inform the Secretary
of any civil penalties so imposed. The penalty shall be enforced as a civil judgment.

        Completing an acknowledgement that the notary knows includes false statements may
also subject the notary to criminal penalties. A four year statute of limitations applies to the
crime(a misdemeanor) of a notary making and delivering as true any certificate or writing which
contain statements the notary knows to be false. Note the statute of limitations can begin to run
from the commission of the offense or the discovery of the offense, whichever is later (the
wrongdoing might be discovered long after it was committed—the prosecutor then has four years
to begin a prosecution.) A criminal action does not preclude a civil action—both may be taken.

40
    Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
41
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
42
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
43
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'


                                                  29
        The notary should be alert to the perhaps remote possibility that the client is using the
notary in an attempt to commit fraud. Does the identification card appear to have been altered?44
Does the signature on the card match the signature the signer does before the notary? 45 Does the
identifying information on the card—birth date, age, weight—seem to match the person before
the notary?46 If the card has a photo, does it look like the person in the notary‟s presence?

        Are there blanks in the document to be notarized?47 An incomplete document cannot be
notarized. Is it dated after the date of notarization?48 Undated?49 Does it have correction fluid?50

        Is the signer nervous?51 Surly?52 Aggressive?53 Is someone in the room pressing the
signer to sign?54

       In any of these situations, the notary may wish not to notarize the document.55



44
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
45
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
46
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
47
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
48
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
49
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
50
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
51
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
52
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
53
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
54
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'
55
   Joanna Lilly, The Unlawful Notary, undated,
http://lastwordedits.com/unlawfulnotary.pdf#search='unlawful%20practice%20of%20law%20notary%20public%20
California'


                                                  30
       Any document to be notarized must contain notarial wording.

       The notary can only certify copies of powers of attorney under Probate Code section
4307 and copies of that notary‟s own journal requested by the Secretary of State.

       “In virtually all of the certificates the notary public is called on to complete, there will be
a venue heading such as “State of California, County of ___________.” The county named in the
heading is the county where the signer personally appeared before the notary public and
acknowledged signing the document.”

        If the signer and the notary do not speak the same language, the notary should refer the
signer to a notary who speaks the signer‟s language. An interpreter is not acceptable.




                                                 31
                           Chapter Highlights:

   The signer must appear before a notary completing an acknowledgement.

   Proper identification must be presented (although under the satisfactory evidence
    rule, the proper identification may come from witness(es).)




                                    32
                                             Chapter 9:

                                             The Jurat

           A jurat must be attached to all affidavits subscribed and sworn to before the notary
public.

        With the jurat the notary certifies 4 things: that the person appeared before the notary on
the date and in the county indicated, that the person signed the document in the notary‟s
presence, that the notary administered an oath or affirmation, and the identity of the signer.
Again, the personal appearance of the person signing before the notary is essential. The notary
cannot do anything with documents mailed in unless the signer is present.

           The notary must have satisfactory evidence that the person executing the document is the
affiant.

           “Satisfactory evidence” requires 2 parts.

       First, the notary must have the absence of any suspicion that would lead a reasonable
person to believe the person was faking identity.

           Second, one of the following circumstance must also be present:

        Possibility A. The oath or affirmation of a credible witness (not under penalty of perjury)
that the person executing the document (1) is personally known to the witness, (2) is the person
named in the document, (3) does not have a California Department of Motor Vehicles-issued
driver‟s license or identity card; United States or foreign passport; driver‟s license from another
state, Canada or Mexico; or an identification card issued by another state, any branch of the US
Armed Forces or by the California Department of Corrections and Rehabilitation (if the inmate is
in custody). Further, the credible witness must affirm (4) that the witness reasonably believes the
person executing the document would find it very difficult or impossible to “obtain another form
of identification” and (5) that the credible witness does not have a financial interest, and is not
named, in the document.

        The identity of the credible witness must (1) be personally known to the notary and (2)
proven by a California Department of Motor Vehicles-issued driver‟s license or identity card;
United States or foreign passport; driver‟s license from another state, Canada or Mexico; or an
identification card issued by another state, any branch of the US Armed Forces or by the
California Department of Corrections and Rehabilitation (if the inmate is in custody).

        Possibility B. The oath or affirmation under penalty of perjury of two credible witnesses
whose identities are not personally known to the notary that the person executing the document
(1) is personally known to the witnesses, (2) is the person named in the document, (3) does not
have a California Department of Motor Vehicles-issued driver‟s license or identity card; United
States or foreign passport; driver‟s license from another state, Canada or Mexico; or an


                                                   33
identification card issued by another state, any branch of the US Armed Forces or by the
California Department of Corrections and Rehabilitation (if the inmate is in custody). Further,
the credible witnesses must affirm (4) that the witnesses reasonably believe the person executing
the document would find it very difficult or impossible to “obtain another form of identification”
and (5) that the credible witnesses do not have a financial interest, and are not named, in the
document.

        The identities of the credible witnesses must proven by a California Department of Motor
Vehicles-issued driver‟s license or identity card; United States or foreign passport; driver‟s
license from another state, Canada or Mexico; or an identification card issued by another state,
any branch of the US Armed Forces or by the California Department of Corrections and
Rehabilitation (if the inmate is in custody).

        Possibility C. The notary may see any of the following identification for the person
executing the document (if reliance is reasonable. If a driver‟s license photo is taped onto the
license, the notary might be wary): a California Department of Motor Vehicles-issued driver‟s
license or identity card; United States or foreign passport; driver‟s license from another state,
Canada or Mexico; or an identification card issued by another state, any branch of the US Armed
Forces or by the California Department of Corrections and Rehabilitation (if the inmate is in
custody).

        In all of the above cases, the California driver‟s license or identification card and the US
passport must be current or issued within the last 5 years. The other documents must also be
current or issued within the last 5 years and also contain photograph, description, and signature
of the person and an identifying number. The foreign passport must be stamped by the United
Stats Immigration and Naturalization Service.

        A notary who fails to secure satisfactory evidence (as defined above) is subject to a civil
penalty of not more than $10,000. The penalty may be pursued by the Secretary in an
administrative action or by a public prosecutor in superior court. The public prosecutor shall
report any civil penalty to the Secretary. The penalty shall be enforced as a civil judgment.

       The form to be used is as follows:
               To any affidavit subscribed and sworn to before a notary, there shall be attached a jurat
               in the following form:
               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.
               Seal________________________________
               Signature____________________________

     Previous forms of the jurat (containing different wording) should be discarded after
December 31, 2007.

        The jurat form must be completely filled out at the time the notary public‟s signature and
seal are affixed.


                                                          34
        The notary can notarize a document in a foreign language since the notary is not
certifying the correctness or truthfulness of the document, merely of the signature. (This is the
recommendation of the Secretary of State.) If the notary cannot determine what type of
document it is, the journal should be so noted, such as “document in a foreign language.” If the
document appears to be incomplete, the notary should decline to notarize.

        If the signer and the notary do not speak the same language, the notary should refer the
signer to a notary who speaks the signer‟s language. An interpreter is not acceptable.

        If a notary public executes a jurat and the statement sworn or subscribed to is contained
in a document purporting to identify the affiant, and includes the birth date or age of the person
and a purported photograph or finger or thumbprint of the person so wearing or subscribing, the
notary public shall require, as a condition to executing the jurat, that the person verify the birth
date or age contained in the statement by showing either (a) a certified copy of the person‟s birth
certificate, or (b) an identification card or driver‟s license issued by the Department of Motor
Vehicles. For the purposes of preparing for submission of forms required by the United States
Immigration and Naturalization Service, and only for such purposes, a notary public may also
accept for identification any documents or declarations acceptable to the United States
Immigration and Naturalization Service.




                                                 35
                                  Chapter Highlights:

   The signer must appear before the notary who is doing a jurat.

   The notary must administer an oath or affirmation.




                                           36
                                        Chapter 10:

                           There’s Always An Exception:

                               No Personal Appearance

         In the discussions of the acknowledgement, it was stressed that the person signing must
be present before the notary. There is an exception. The person (then called a principal) can send
a witness to attest that a person has previously signed a document. This does not work on a deed
of trust, mortgage, security agreement, quitclaim deed or grant deed (other than a trustee‟s deed
or deed of reconveyance).

       The witness must attest under oath that the witness saw the principal sign the document
or heard the principal say the principal signed the document. The witness must either know the
notary or know a third party (called the credible witness) who knows both the witness and the
notary and can establish the witness‟ identity. The witness must sign the document and the
notary‟s journal. No paperwork is allowed to prove the identity here so the witness has no such
information entered in the journal.




                                                37
                                  Chapter Highlights:

   A witness can sometimes substitute before a notary for the signer of a document.

   Either the witness or a credible witness must be personally known to the notary.




                                            38
                                         Chapter 11:

                                    Signature by Mark

        Some people cannot sign their name. They may sign by mark. As usual, the signer‟s
identity must be established by satisfactory evidence (see Chapter 8 for the definition of
“satisfactory evidence”). Additionally, 2 subscribing witnesses must witness the mark and sign
the document as witnesses. One of the subscribing witnesses should also write out the signer‟s
name next to the mark. The identity of the subscribing witnesses need not be established by the
notary nor are they required to sign the journal unless a subscribing witness is also a credible
witness (being used to establish the signer‟s identity) In this last case, the subscribing witness
would sign the journal.




                                                39
                                 Chapter Highlights:

   People who cannot sign their name can sign by mark.

   The mark must be witnessed by 2 subscribing witnesses.




                                          40
                                        Chapter 12:

                                         Advertising
        A notary public who holds himself or herself out as being an immigration consultant or
specialist may not advertise in any manner that he or she is a notary public. If the non-attorney
notary advertises in a language other than English, the ad must include verbiage in both English
and the other language that the notary is not an attorney and cannot give legal (particularly
immigration) advice, specifically stating “I am not an attorney and, therefore, cannot give legal
advice about immigration or any other legal matters” and the fees set by statute which a notary
public may charge. In no event shall the notary use the words “notario publico” or “notario” in
the ad.

        A notary who advertises in a language besides English and does not follow the rules
regarding also having an English translation and disclosures risks, if negligent, suspension of the
commission for at least one year with a maximum civil penalty of $1,500. “In the event that the
notary public commission is suspended, within fifteen (15) calendar days of the conclusion of the
suspension, the respondent shall submit to the Secretary of State samples of all current business
cards, letterhead, advertisements (newspaper, magazine and fliers) and current photographs of all
business signs.” If the omission was willful, the notary can lose the commission with a civil
penalty of not more than $1,500.

        Notaries who are properly licensed to provide immigration services cannot advertise in
any manner they are notaries. Negligently doing so may subject the notary to a suspension of at
least 6 months and a civil penalty of not more than $1,500. “Within thirty (30) calendar days of
the conclusion of the suspension, respondent shall submit to the Secretary of State samples of all
current business cards, letterhead, advertisements (newspaper, magazine and fliers) and current
photographs of all business signs.” Willfully so advertising opens the notary to revocation of the
commission with the same maximum civil penalty.

        False and misleading advertising claiming “duties, rights or privileges” not possessed by
law can create problems for a notary. If the notary was negligent, the commission can be
suspended for at least a year with a civil penalty not to exceed $1,500. The notary coming off
suspension must shows the Secretary of State “samples of all current business cards, letterhead,
advertisements (newspaper, magazine and fliers) and current photographs of all business signs”
within 30 days. If the violation was willful, the commission may be revoked and a civil penalty
not greater than $1,500 assessed.

        Third parties who advertise a notary‟s services can place the notary in trouble here. The
Secretary notes that a business which provides immigration services and also employs a notary
would endanger the notary‟s commission by including notice of both functions in advertising.
The safest course for the notary is to insist on reviewing any advertising placed by anyone else
on the notary‟s behalf or mentioning the notary. Any such advertising must conform to all the
same regulations as if the notary placed the ad.




                                                41
        How will people know the notary is available? How will people choose this notary?
Those are the big problems of advertising. Since notarizing pays relatively little, it is important
not to compromise that revenue with high advertising expenses.

        Many people today are using the World Wide Web. It‟s easy for the notary to be on there.
Geocities.com offers free web sites (though the customer will see an ad provided by Geocities).
The company offers an automated “click and choose” system so setting up the web site could not
be easier—they probably have the best platform for this. The web site will provide rudimentary
data on how many people visit the site, broken down by hour, day, week or month.

        People using the web site can be invited to sign up for an e-mail list which will
periodically send them messages. The notary will have to think up some useful content that
people would want to receive—“provided courtesy of Jane Doe, notary public.” If the notary
specializes in a particular field, news pertinent to that area or profession might be provided. How
to find content for such a list is easy. Yahoo Alerts will search many newspapers and
publications for any key word(s) designated and deliver summaries along with URLs (web
addresses) for more information to the notary‟s e-mail. Sign up at alerts.yahoo.com. Select
“News” from the right-hand pull-down menu. Check “Keyword News” and hit the set up button.

         Such an e-mail list can be set up at yahoogroups.com. Be sure and check the
“announcement only” list—otherwise any message sent to the list address will be distributed to
all the subscribers. The notary wants only the notary‟s messages delivered! This simple HTML
line pasted onto the web site will direct readers to the yahoogroups site where they can sign up:
<a href="the web site Yahoo assigns the list, such as “http://www.yahoogroups/notary”>Sign up
for a great e-mail list</a>


       Think about what a person would do, looking for a local notary on the web. A search
might be made on Google. Go to Google.com and enter the new web site at
www.google.com/addurl/?continue=/addurl, though Google might find it on its own. Froogle
presently offers free listings to local merchants—click “Local,” then “Information for Business
Owners.”

       A site can be suggested for inclusion in Yahoo‟s search engine at
submit.search.yahoo.com/free/request.

       Does the local paper have an online yellow pages? The Los Angeles Times doesn‟t but,
one county over, the Orange County Register uses www.switchboard.com. It‟s a little
convoluted—click “Contact Us” at the bottom of the page. Select the topic “Find a Business”
from the pull-down menu. Click “How do I add my business listing?” After all that, at least it‟s
free.

        Will the local paper write about a notary in a news article, getting the notary‟s name
before the public? There‟s no National Notary Day in the United States. Why not? Maybe a
reporter would be interested in documenting a notary‟s efforts to get Congress to establish such a




                                                 42
day. On October 25, 1639, the first notary, Thomas Fugill, in America got his commission.56
That‟s a nice occasion for a newspaper to commemorate, along with a few words about what
notaries do in California society and mentioning a certain notary‟s name. (Thomas came to a bad
end. In distributing house lots, apparently in New Haven, he gave more to himself than he should
have, was removed from office and left the colonies in 1646.57) Any published article mentioning
the notary can be photocopied and included in advertising or letters—just check with the
newspaper to make sure they don‟t see this as a problem with their copyright.

        The standard way to propose a story to a newspaper is through the press release. This
must contain a news angle58 (the fight to get a National Notary Day, the 366th anniversary of
notaries in America.) A press release is not an ad.59 It must describe “who, what, where, when
and why.”60 Blast through the ho hum factor—have a headline that grabs the reader.61 Be
concise—“shorter is better.”62 Tell the story right there—don‟t say click here for a web site with
the details.63

        Press releases are typically e-mailed.64 Check the newspaper‟s web site for e-mail
addresses, perhaps under “Contact Us.” Probably the notary will be e-mailing one or two local
papers or even radio stations. But if more than a few are being included, use the “Blind Copy” or
similar option on the e-mail so the recipient doesn‟t see half a page of e-mail addresses before
the notary‟s message.65

       A stationery store might be glad to have a notary available at scheduled hours. A newly
minted lawyer going into solo practice may be eager to know a notary.

       Want to accept credit cards? (Even fireworks stands are taking credit cards now.) The
web site can. PayPal.com provides the service. The customer could book the appointment on the
web site and pay; the notary would then show up at the required time.

56
   Nell B. Chambers, Notaries Public: A Brief History and Ethical Considerations, March 2005, Advisor,
http://www.bdblaw.com/nlgraphics/March2005printversion.htm
57
   Nell B. Chambers, Notaries Public: A Brief History and Ethical Considerations, March 2005, Advisor,
http://www.bdblaw.com/nlgraphics/March2005printversion.htm; Anonymous, Ancestors of Randy Wilson, undated,
http://www.kick-me-out-of-bed.com/genealogy/pafn41.htm. New Haven was in Connecticut: The Society of
Colonial Wars in the State of Connecticut, New Haven Town Plan, 2000,
http://www.colonialwarsct.org/1638_new_haven_plan.htm. Another source says Fugill sold his New Haven house in
1649, suggesting he left for England (he was from Yorkshire) later than the date given in the text: Anonymous,
Chapter VIII: The Personnel of the Plantation, undated,
http://www.quinnipiac.edu/other/abl/etext/colony/chapter8.html
58
   Anonymous, How to Write a Press Release, undated, http://www.infoscavenger.com/prtips.htm
59
   Anonymous, How to Write a Press Release, undated, http://www.infoscavenger.com/prtips.htm
60
   Anonymous, How to Write a Press Release, undated, http://www.infoscavenger.com/prtips.htm
61
   Anonymous, How to Write a Press Release, undated, http://www.infoscavenger.com/prtips.htm
62
   Stoller and Bard Communications, Press Releases—How to Write a Great Press Release, undated,
http://www.publicityinsider.com/release.asp
63
   Mark Gebbie, How to send e-mail press releases. And how NOT to!, 2004,
http://www.pertinent.com/articles/publicity/gebbiePress.asp
64
   Mark Gebbie, How to send e-mail press releases. And how NOT to!, 2004,
http://www.pertinent.com/articles/publicity/gebbiePress.asp
65
   Mark Gebbie, How to send e-mail press releases. And how NOT to!, 2004,
http://www.pertinent.com/articles/publicity/gebbiePress.asp


                                                     43
        At the time of this writing, PayPal charges the notary 2.9% plus 30 cents so for a $10
notarial fee, the notary is paying 59 cents to accept credit cards. The PayPal site has a form
asking questions about the charges the notary will make and then generates code which the
notary copies and pastes onto the notary‟s web site. The notary may need to know a little HTML
(the language used to create web sites) to accomplish this because, if using Geocities, the notary
will have to get beyond the automated template in File Manager to paste this. HTML is easy to
learn—it‟s just a bunch of codes to make things happen. For example, if a new paragraph is
desired, the HTML code <p> ends the sentence, creates one blank line and indents the new
sentence. Wow! Or the notary‟s kid probably knows how to do this.

        A web page begins with coding like this: <html><head><title></title></head><body>
and ends, at the bottom of the page, with </body> </html>. A good title is important because,
though it will not be visible on the web site, it will be seen at the top of the viewer‟s browser
identifying the site and it is used by search engines to categorize the site. These carefully chosen
66 words are placed between <title> and </title>. The slash turns things off in HTML.

        The web page can be given a background color with the code <body bgcolor="white">.
The color can be changed by substituting the word “white” with codes representing different
colors. These can be found by searching the web for +HTML +color. A sample color chart is
located at www.web-source.net/216_color_chart.htm.

        Text on a web page can be centered using <center>, with </center> turning this feature
off. Text defaults to a left alignment. It is theoretically possibly to right justify text with
<align=right> although this does not seem to work at Geocities. Text can be colored by using
<font color="white">. “White,” again, can be changed by using a code for another color. Font
size can be adjusted with <font size="number">. If one wants to reduce the size of a font after a
big headline, one turns off the first font with </font size="6"> and starts a smaller size, such as
<font size="3">. Be sure to choose a background color and font color that go together—that
people can easily read. This is not the time to get too artsy.

       Visitors can e-mail the notary if the following code is included, usually at the bottom of
the web page: <a href="mailto:youremail@wherever.com">Mail</a>.

       One can include graphics or pictures on the site with this: <img src="filename">.
Typically, the image is uploaded to the web page site, although it is possible to display a photo
located on another site. Geocities makes uploading images particularly easy—no worries about
FTP nonsense.

       Graphics are often used to represent the e-mail address—click on the graphic and up
comes the e-mail program. The coding for this is: <a
href="mailto:youremail@wherever.com"><img src="filename.gif"></a>.

       A simple line break, creating no empty space, is done with <br>. If a new paragraph is
desired, use <p>.




                                                 44
      Links can be created to other places on the web: <a href="filename.html">NAME of
FILE</a>.

        Lists are made either with bullets (<ul><li></ul>) or with numbers (<ol><li></ol>).
Using <ol type="a"> creates a list with letters instead of numbers. The list is begun with <ul> or
<ol>. Each list item is prefaced by <li>. The <li> automatically creates a line break when the
next item is entered so no <br> or <p> is needed within the list. The list is ended with </ul> or
</ol>.

          If a lot of web sites link to a particular site, that site is considered important by the search
engines. Suppose one does not immediately think of someone who would want to link to one‟s
site. Choose another notary‟s site and run that address through linkpopularity.com. This site will
tell all the sites linking to that address—maybe sites that the notary can ask to link to the notary‟s
own site. For example, the White House‟s web site is at whitehouse.gov. Run that web address
through linkpopularity.com and it shows Google has indexed 52,000 sites that have a link to
whitehouse.gov, MSN 778,126 links and Yahoo 2,090,000 links. It‟s a useful way to backtrack
the competition and see if they have connections a notary ought to exploit.

       A web site is not only to find a prospective notary. It is also available to provide
information to clients who have already used that notary. Hopefully, they‟ve bookmarked the
notary‟s web site and can return to it to find out how to contact the notary and learn prices and
hours.

        People who rarely use a notary may be worried about the problem of doing so—how will
it all work out, will it be a bother, will it take a lot of time. The notary targeting this infrequent
user market may wish to emphasize how easy and no trouble using this particular notary will be.
Perhaps the notary will want to give out a cell phone number and/or frequently check an e-mail
address to be very accessible.




                                                   45
                                     Chapter Highlights:

      Any notary who holds himself or herself out as being an immigration specialist or
consultant cannot advertise in any manner that he or she is a notary public.

      Non-English ads must include an English translation and certain disclosures.




                                              46
                                              Chapter 13:

                                     Confidential Marriages
        With additional training, the county clerk may approve a notary public to authorize
confidential marriages. Since a confidential marriage license is only good in the county in which
it was issued, the notary would need to apply to more than one county clerk if the notary desires
to authorize confidential marriages in more than one county. This authorization for confidential
marriages is good for one year and may be renewed.66

         The persons desiring to be so married must be at least 18 years of age--this is not
available to emancipated minors.67 They must swear under penalty of perjury that they are living
together as “husband and wife”--no time period is specified.68 If either party has been married,
some counties may require a copy of the final decree of divorce (or register of actions showing
the final decree has been entered).69 The notary is required to furnish the couple with a state-
provided brochure.70

        The record of a confidential marriage is sealed and is accessible only by either party to
the marriage or by court order.71 Since any future copies of a confidential marriage license must
be obtained in person and showing picture identification, this license may prove awkward if the
couple (or either party) moves to Florida or New York and subsequently needs a copy of the
license.72

       If a notary is approved by the county clerk to authorize confidential marriages, the notary
may also perform the ceremony if the notary is also a person authorized under Family Code
secton 400 to 402, e.g., priest, minister, or rabbi.

        The county clerk may hold a hearing to determine if the notary has violated any of the
rules regarding confidential marriages and place the notary on probation with regard to
66
   Anonymous, California Codes. Family Code. Section 500-511, undated, www.calelections.org/familycode.htm
67
   Specialized Wedding Services, Confidential Marriage License, undated,
www.specializedweddings.com/cml.html. O‟Connell says there is an exception for minors if parental consent is
achieved (Dr. Rev. Cathleen O‟Connell, How to Obtain a Marriage License in California, 2005,
www.cathleenoconnell.com/marriagelicense.htm) but this view has no support on the State of California‟s Center of
Health Statistics‟ web site (Center of Health Statistics, California Marriage License, Registration and Ceremony
Information, 2004, http://www.dhs.ca.gov/HISP/chs/OVR/Marriage/MarriageType.htm.)
68
   Specialized Wedding Services, Confidential Marriage License, undated,
www.specializedweddings.com/cml.html. O‟Connell says there is a requirement of having lived together for one
year (Dr. Rev. Cathleen O‟Connell, How to Obtain a Marriage License in California, 2005,
www.cathleenoconnell.com/marriagelicense.htm) but this view has no support on the State of California‟s Center of
Health Statistics‟ web site (Center of Health Statistics, California Marriage License, Registration and Ceremony
Information, 2004, http://www.dhs.ca.gov/HISP/chs/OVR/Marriage/MarriageType.htm.)
69
   Specialized Wedding Services, Confidential Marriage License, undated, www.specializedweddings.com/cml.html
70
   Anonymous, California Codes. Family Code. Section 500-511, undated, www.calelections.org/familycode.htm
71
   Dr. Rev. Cathleen O‟Connell, How to Obtain a Marriage License in California, 2005,
www.cathleenoconnell.com/marriagelicense.htm
72
   Rainbow Chapel Weddings, Marriage License F.A.Q., undated,
http://www.sirbacon.org/rainbowchapel/weddings/marriagelicensefaq.htm


                                                       47
confidential marriages or suspend or revoke the approval. Any findings made by the county clerk
shall be reported to the Secretary of State.




                                              48
                                     Chapter Highlights:

      Authorizing confidential marriages requires separate training and approval by the county
clerk.

      Each county separately authorizes notary publics for confidential marriages.




                                              49
                                              Chapter 14:

                                What a Notary Can Charge

       The California Government Code (section 8211) defines how much a notary can charge:

               8211. Fees charged by a notary public for the following services shall not
               exceed the fees prescribed by this section.
                 (a) For taking an acknowledgment or proof of a deed, or other instrument, to
               include the seal and the writing of the certificate, the sum of ten dollars ($10)
               for each signature taken.
                 (b) For administering an oath or affirmation to one person and executing the
               jurat, including the seal, the sum of ten dollars ($10).
                 (c) For all services rendered in connection with the taking of any deposition,
               the sum of twenty dollars ($20), and in addition thereto, the sum of five dollars
               ($5) for administering the oath to the witness and the sum of five dollars ($5) for
               the certificate to the deposition.
                 (d) For every protest for the nonpayment of a promissory note or for the
               nonpayment or nonacceptance of a bill of exchange, draft, or check, the sum of
               ten dollars ($10).
                 (e) For serving every notice of nonpayment of a promissory note or of
               nonpayment or nonacceptance of a bill of exchange, order, draft, or check, the
               sum of five dollars ($5).
                 (f) For recording every protest, the sum of five dollars ($5).
                 (g) No fee may be charged to notarize signatures on absentee ballot
               identification envelopes or other voting materials.
                 (h) For certifying a copy of a power of attorney under Section 4307 of the
               Probate Code the sum of ten dollars ($10).
                 (i) In accordance with Section 6107, no fee may be charged to a United States
               military veteran for notarization of an application or a claim for a pension,
               allotment, allowance, compensation, insurance,or any other veteran's benefit.

        The Handbook points out that charging a fee is not required, in which case a notation of
“no fee” or “0” is entered in the journal. There are a number of instances when not charging a fee
is required:

      When a notary is appointed to a military or naval reservation
      When a notary verifies any nomination document or circulator‟s affidavit
      When a notary is notarizing an “application or a claim for a pension, allotment,
       allowance, compensation, insurance, or any other veteran‟s benefit” presented by a
       military veteran of the United States.

        When a notary is “appointed to act for and on behalf of certain public
agencies” (Government Code section 8202.5), the notary is required to charge for the services
and to remit the fee to the agency employing the notary. Such an agency will have arranged for
the notary‟s appointment documents to be filed at no charged and paid the notary‟s bond
premium. The agency may also pay for other notary supplies.




                                                       50
        The notary‟s employer who has paid for notarial expenses such as the bond may require
the notary to remit fees to that employer.

       A notary public who is also an immigration consultant may not charge more than $10 for
entering data provided by the client onto immigration forms.

       Notice each signature makes a separate fee possible. So while $10 seems a little low—
how does anyone make money doing this?—if the husband has to sign a couple of times and the
same with the wife, the fee is now a maximum of $40. One notary reports having enough work to
charge $80 for a set of documents.

        A notary who negligently charges more the maximum fees allowed by law may be
suspended for at least 6 months and assessed a civil penalty of not more than $750. Within 30
days of the conclusion of the suspension, the notary must send the Secretary a “signed statement
identifying all fees charged for services relating to the duties and responsibilities of a notary
public.” A notary who willfully exceeds maximum fees may have the commission revoked along
with a civil penalty not to exceed $750.

        The notary should not charge a travel fee if the notary does not travel.

       Receipts should be offered to clients. This is particularly important if the client is running
an account, insurance is being billed, or a credit card is being used.

       All income has to be claimed. Keep records and receipts for all deductions including
supplies and travel.

       There is a Buddhist saying that if one cannot sleep it is because of greed. The notary who
does not report all their income can probably expect some restless nights worrying about the
consequences. They could be penalized by the government and forced to endure years of
subsequent auditing. They could lose their commission which would effect their employment
opportunities. It is said that one never knows when one is going to be audited. The income has to
match the lifestyle. If the Internal Revenue Service (IRS) does not find proper income
documentation, they can do a "standard of living analysis" to assist in determining income.73
There may be some hard explaining to do.

       One problem in not being honest is that someone the notary knows, works with or does
business with may turn them in for the reward. The IRS rewards these whistleblowers with up to
15% of the amount of taxes and penalties recovered (but not interest) (though the money may
take up to two years to arrive and an IRS study indicates only 1% of whistleblowers actually see
any money.74 Another source put the percent of paid whistleblowers at 8%.75 By the way, the

73
   Bob Parrish, CPA, Beauty and Barber Shops—IRS White Paper, undated,
http://www.pro1040.com/beauty_salons_mssp.htm
74
   Jay MacDonald, Making tax cheats pay up and pay off, 2005,
http://www.bankrate.com/brm/itax/news/20030221a1.asp?print=on
75
   Tom Herman, Can You Collect a Reward for Tipping Off the IRS?, 2002,
http://www.salestax.org/news/thisweeksnews_10-4-02.html


                                                     51
reward is fully taxable.76) It is undesirable to give someone that kind of power over oneself.

        The IRS reportedly keeps a close eye on the self-employed because it believes that is
where most of the cheaters are. In an audit, the IRS will have access to bank account and other
financial records to look for deposits of unreported income. Potential problem areas include
reporting personal living expenses as business ones (including automobile and travel expenses),
large entertainment expenses, and skimming cash off receipts. The self-employed cash business's
chance of being audited is said to be well above average.

       On the other hand, a notary should take all deductions available. Ones that self-employed
people often miss are health insurance premiums, business credit card finance fees, and cell
phone and Internet connection charges.

       Timing in paying taxes can be important. Self-employed persons may need to pay
estimated taxes four times a year. Being late on these taxes or underestimating the amount due
can result in fines.

       The bottom line is that honesty and immaculate recordkeeping go a long way toward
peace of mind.




76
  Tom Herman, Can You Collect a Reward for Tipping Off the IRS?, 2002,
http://www.salestax.org/news/thisweeksnews_10-4-02.html


                                                    52
                                    Chapter Highlights:

   What a notary can charge is regulated by law.

   In certain cases, a notary is not allowed to charge a fee.




                                             53
                                                  Chapter 15:

                               The Notary’s Duty to Perform


        The notary has a duty to notarize any document presented anywhere in California upon
payment of the proper fees, unless the notary is employed as described in Government Code
section 8202.7 or .8 or has “ direct beneficial or financial interest to the transaction.” Apparently
this means the notary must take the journal and seal on vacation.

         The employer may limit the notary‟s notarial activities during the course of employment;
in this case, the duty to notarize all comers is mitigated. It is unclear if this exception applies
only to employers who have paid for notarial expenses (such as the bond) and if the notary is free
to notarize outside the employer‟s constraints before and after business hours. The office of the
Secretary of State recommends that if there is an agreement between a private employer and a
notary that specifies the limitations of notarial services during a notary‟s ordinary course of
employment, the notary should consult with his or her employer regarding any constraints on
notarizing outside business hours.

        Because California has the community property law, the notary should consider carefully
if notarizing for a spouse would ultimately provide benefit to the notary, thus barring the
notarization. It is not the decree of kinship which is the problem—thus, one may notarize for
relatives—but the “direct beneficial or financial interest.” If a notary‟s spouse used wages to buy
a house, that house would be part of the marriage‟s community property and would be an asset
divided between the notary and the spouse if a divorce were to occur.

      The notary must refuse to notarize an incomplete document or one which the notary
knows to include false statements.

       In addition to the notary‟s obligation to perform, other California laws prohibit refusing
to do business with anyone.77 The signs which say “We reserve the right to refuse service to
anyone” are not legal.78

        “The Unruh Act prohibits all types of arbitrary discrimination, and not just discrimination
based on sex, race, color, religion, ancestry, national origin, age, disability or medical condition.
The Unruh Act also prohibits discrimination based on personal characteristics, geographical
origin, physical attributes, and individual beliefs. For example, the arbitrary exclusion of
individuals from a restaurant based on their sexual orientation is prohibited.”79


77
   Fagan and Fagan, Attorneys at Law, Racial Discrimination By a Store or Business, undated,
http://www.discriminationiswrong.com/business.html
78
   Fagan and Fagan, Attorneys at Law, Racial Discrimination By a Store or Business, undated,
http://www.discriminationiswrong.com/business.html
79
   Office of the Attorney General, Unlawful Discrimination: Your Rights and Remedies, California Department of
Justice, undated, http://caag.state.ca.us/publications/civilrights/01CRhandbook/chapter4.htm


                                                      54
         A court has described the Unruh Act‟s “arbitrary”: someone "... cannot be excluded
solely because he falls within a class of persons whom the owner believes is more likely to
engage in misconduct than some other group. Whether the exclusionary policy rests on the
alleged undesirable propensities of those of a particular race, nationality, occupation, political
affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary
discrimination."80

       “…the Gender Tax Repeal Act of 1995, prohibits business establishments from
discriminating in the price charged for similar or like services against a person because of the
person's gender.”81 This suggests it may be illegal to charge men and women different prices,
such as a Ladies‟ Discount Night.82

       “Civil Code section 51.9 prohibits [a businessperson] from making pervasive or severe
unwelcome sexual advances, solicitations, sexual requests, or demands for sexual compliance, or
from engaging in conduct of a sexual or hostile nature based on gender” with a client.83

       Municipalities may have anti-discrimination statutes which are broader than the state‟s.
For example, San Francisco “protects against gender identity discrimination,” including
transgendered people.84




80
   Martin S. Snitow, Fair Housing, California Style, 2001, http://www.msslc.com/calif.html
81
   Office of the Attorney General, Unlawful Discrimination: Your Rights and Remedies, California Department of
Justice, undated, http://caag.state.ca.us/publications/civilrights/01CRhandbook/chapter4.htm
82
   The California Supreme Court has so ruled, in 1985, based on the Unruh Act—free admission or discounts to
women are not permissible. (Martin S. Snitow, Fair Housing, California Style, 2001,
http://www.msslc.com/calif.html). On the other hand, discounts given because of age may be all right (Leanne
Phillips, The Right to Refuse Service: Can a Business Refuse Service to Someone Based Solely on Their
Appearance, Odor or Attitude?, 2005, http://www.legalzoom.com/articles/article_content/article13363.html.) The
Secretary of State suggests charging everyone the same price for consistency.
83
   Office of the Attorney General, Unlawful Discrimination: Your Rights and Remedies, California Department of
Justice, undated, http://caag.state.ca.us/publications/civilrights/01CRhandbook/chapter4.htm
84
   City and County of San Francisco Human Rights Commission, Economic Empowerment for the Lesbian Gay
Bisexual Transgender Communities - November 2000, 2000,
http://www.ci.sf.ca.us/site/uploadedfiles/sfhumanrights/docs/econ.htm#preface


                                                      55
                                  Chapter Highlights:

   Generally a notary must notarize any document presented once proper fees are paid.

   The notary cannot notarize a document for a transaction which benefits the notary.




                                           56
                                             Chapter 16:

                                      Getting Into Trouble
        Keep in touch with the Secretary. The notary needs to notify the Secretary within 30 days
of a change of address of a principal place or business or residence. That address cannot be a
post office box or commercial equivalent unless the Secretary is also given a physical residence
address. If changing the business address, include the business name. Willful failure to do so is
an infraction punishable by a fine not to exceed $500.

         Likewise, tell the notary about any name changes. Although the law states a confidential
application for name change form must be filed, a time limit is not specified. (The Secretary
suggests doing so within 30 days.) The Secretary will issue a commission reflecting the new
name. (The term of the commission and the commission number remain the same.) Willful
failure to do so is an infraction punishable by a fine not to exceed $500.

         Once the amended commission with the new name is issued, the notary has 30 days to
file a new oath and amended bond with the county clerk. The amended commission with the
name change shall not take effect unless the filing is completed within the 30-day period, and the
amended commission with the name change takes effect the date the oath and amendment to the
bond is filed with the county clerk.

        If the Secretary requests information in writing by certified mail relating to a notary‟s
official acts, the notary has 30 days from receipt to respond.

       Numerous actions can get a notary public‟s commission never issued, suspended or
revoked.

               These reasons include but are not limited to: a substantial misstatement or
               omission in the application; conviction of a felony or a disqualifying criminal
               conviction; failure to furnish the Secretary of State with certified copies of the
               notary public journal when requested to do so or to provide information relating
               to official acts performed by the notary public; charging more than the fee
               prescribed by law; failure to complete the acknowledgment at the time the
               notary public‟s seal and signature are attached to the document; executing a
               false certificate; failure to submit to the Secretary of State any court ordered
               money judgment, including restitution; failure to secure the sequential journal or
               the official seal; illegal advertising.


       Not paying family or child support can also cause problems for the commission.

       If a notary (or any other person) knowingly destroys, defaces or conceals any notarial
records or papers, the notary is guilty of a misdemeanor and may be sued civilly by persons
damaged by such behavior. Prosecution for this offense must begin within 4 years of either the
commission of the offense or the discovery of the commission, whichrver date is later. Other
remedies may also be available.



                                                      57
        A notary is barred from performing any notarial act for a transaction in which the notary
“has a direct financial or beneficial interest.” A notary has such an interest where the notary is
named as a principal in the transaction or when the notary, in a real estate transaction, is named
“individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor,
vendee, lessor, or lessee.” There is no such interest when the employee is acting “an agent,
employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial
interest in the transaction.”

       A notary cannot notarize his or her own signature.

               Grounds for refusal, revocation or suspension of commission
               The Secretary of State may refuse to appoint any person as notary public or may
               revoke or suspend the commission of any notary public upon any of the
               following grounds:
               Substantial and material misstatement or omission in the application submitted
               to the Secretary of State.
               Conviction of a felony, a lesser offense involving moral turpitude, or a lesser
               offense of a nature incompatible with the duties of a notary public. A conviction
               after a plea of nolo contendere is deemed to be a conviction within the meaning
               of this subdivision.
               Revocation, suspension, restriction, or denial of a professional license, if the
               revocation, suspension, restriction, or denial was for misconduct, for dishonesty,
               or for any cause substantially relating to the duties or responsibilities of a notary
               public.
               Failure to discharge fully and faithfully any of the duties or responsibilities
               required of a notary public. [A negligent violation of this section may lead to a
               civil penalty not greater than $750. Is also a misdemeanor.]
               When adjudged liable for damages in any suit grounded in fraud,
               misrepresentation, or violation of the state regulatory laws or in any suit based
               upon a failure to discharge fully and faithfully the duties as a notary public.
               The use of false or misleading advertising wherein the notary public has
               represented that the notary public has duties, rights, or privileges that he or she
               does not possess by law. [Violation of this section may lead to a civil penalty not
               greater than $1,500.]
               The practice of law in violation of Section 6125 of the Business and
               Professions Code. [6125 prohibits the practice of law without being an attorney.]
               Charging more than the fees prescribed by this chapter. [Violation of this
               section may lead to a civil penalty not greater than $750.]
               Commission of any act involving dishonesty, fraud, or deceit with the intent to
               substantially benefit the notary public or another, or substantially injure another.
               [Violation of this section may lead to a civil penalty not greater than $1,500.]
               Failure to complete the acknowledgment at the time the notary‟s signature and
               seal are affixed to the document. [Violation of this section may lead to a civil
               penalty not greater than $750.]
                Failure to administer the oath or affirmation as required by paragraph (3) of
               subdivision (a) of Section 8205. [Violation of this section may lead to a civil
               penalty not greater than $750.]
               Execution of any certificate as a notary public containing a statement known to
               the notary public to be false. [Violation of this section may lead to a civil
               penalty not greater than $1,500.] [Performing any notarial act involving a deed
               of trust for a single family residence of 4 units or less where the notary (a)
               knowingly, (b) willfully (c) attempts to defraud (d) with the knowledge that the
               document contains false statements or is in any part forged, is guilty of a felony.
               This remedy is not exclusive.]


                                                        58
               Violation of Section 8223. [Violating the prohibition against a notary public
               who holds himself or herself out as an immigration specialist or consultant
               advertising that he or she is a notary public or violating the restrictions on
               charging to assist in the completion of immigration forms. Violation of this
               section may lead to a civil penalty not greater than $1,500.]
               Failure to submit any remittance payable upon demand by the Secretary of
               State under this chapter or failure to satisfy any court-ordered money judgment,
               including restitution.
               Failure to secure the sequential journal of official acts, pursuant to Section
               8206, or the official seal, pursuant to Section 8207, or willful failure to report
               the theft or loss of the sequential journal
               Violation of Section 8219.5. [Violating the restrictions on advertising notarial
               services in a foreign language or literally translating the phrase “notary public”
               into Spanish. Violation of this section may lead to a civil penalty not greater
               than $1,500.] The Secretary of State shall suspend for a period of not less than
               one year or revoke the commission of any notary public who violates the
               restrictions on advertising notarial services in a foreign language or who literally
               translates the phrase “notary” into Spanish; on the second offense, the
               commission shall be revoked permanently.
               Making and delivering any certificate containing statements the notary knows
               to be false
               Knowingly and willfully with intent to defraud performing any notarial act in
               relation to a deed of trust on real property consisting of a single-family residence
               containing not more than four dwelling units, with knowledge that the deed of
               trust contains any false statements or is forged in whole or in part, is guilty of a
               felony.
               Soliciting, coercing, or in any manner influencing a notary public to perform an
               improper notarial act knowing that act to be an improper notarial act. [This is a
               misdemeanor with the statute of limitations expiring 4 years after the
               commission of the act or the discovery of the commission, whichever date
               comes later. Other remedies may be available.]
               Pretending to be a notary public without being properly commissioned
               Knowingly procuring or offering any false or forged instrument to be filed,
               registered, or recorded in any public office.
               Forgery.
               Grand theft
               Identity theft
               Willfully failing to provide access to the journal upon request of a peace
               officer. [Violation is subject to a civil penalty not to exceed $2,500 which may
               be sought either in an administrative action brought by the Secretary of State or
               in superior court by the public prosecutor who will report any penalty imposed
               to the Secretary. The penalty shall be enforced as a civil judgment.]

        A notary‟s records may be examined by the Secretary of State and by a peace officer
acting with the peace officer‟s authority in order to enforce Title 2, Division 1, Chapter 3 relating
to notary publics. Such an officer needs reasonable suspicion. The notary‟s records which may
be examined include books, letters, contracts, and other pertinent documents relating to the
notary‟s official acts.

        A notary who willfully fails keep the notary‟s seal under direct and exclusive control of
the notary public or who willfully surrenders the seal to a person not authorized to possess a
notary‟s seal is guilty of a misdemeanor. Prosecution for this offense must be brought within 4




                                                       59
years of the commission of the offense or the discovery of the commission, whichever is later.
Other remedies may be available.

        If a notary loses any other license due to “misconduct, dishonesty, or any
cause that is substantially related to the duties or responsibilities of a notary public,” the
Secretary shall institute action which could lead to the loss of the notary‟s commission.

         If a notary negligently fails to perform any notarial duty, the commission could be
suspended at least 6 months or revoked; in both cases, a civil penalty of up to $750 can be
assessed. If the dereliction is willful, the commission can be revoked and the maximum penalty
doubles. Examples of possible problems include “failure to verify identification, failure to
require personal appearance, unauthorized use of seal, failure to maintain and secure journal,
failure to complete journal line items at the time of the notarial act, notarization of incomplete
documents, failure to notify Secretary of State of any address changes, failure to respond to a
written request from the Secretary of State, loss of the right to authorize confidential marriages.”

        If a notary loses “a case involving fraud, misrepresentation, violation of state regulatory
laws or failure to fully and faithfully discharge the duties of the office,” the Secretary may
institute proceedings to revoke the notary‟s license. Presumably the Secretary could revoke a
license for a lost suit involving fraud that was unrelated to the notary‟s commission. For
example, a notary who was also a fisherman and who lost a suit accusing the notary of obtaining
50 fishing poles by misrepresentation would be subject to this provision.

       Intentionally committing an act involving “dishonesty, fraud, or deceit” to benefit the
notary or “substantially injure another” may lead to the revocation of the commission and a
maximum civil penalty of $1,500.

       “Compromising the notary public examination in any manner” is grounds for permanent
revocation and a civil penalty not exceeding $1,500. This includes cheating on the exam.

        If a notary public issues an acknowledgement knowing it to be false, the notary may be
guilty of forgery; this may also be a misdemeanor. (Every person who with the intent to defraud
counterfeits or forges the seal or handwriting of another may be guilty of forgery. This includes a
person who falsifies the acknowledgement of a notary public.)

      Not paying money judgment ordered by a court, including restitution, or by the Secretary,
may be caused for revocation of the commission.

        Either the Secretary of State or the hearing officer may impose the civil penalty.

        If a notary public is convicted of a crime involving notarial misconduct (including the
false completion of a notarial certificate) OR of any felony, the court must revoke the notary
public‟s commission. The notary must surrender the seal to the court, which will forward the seal
to the Secretary of State with a certified copy of the judgment.




                                                  60
        If the Secretary believes a notary is about to violate a provision of the Government Code
or of any of the Secretary‟s rules and regulations, the Secretary may seek an injunction from a
court to enjoin the notary from that behavior. The court may order the notary to pay for the
Secretary‟s expenses in the matter (though if the notary gets the injunction overturned by an
appellate court, the Secretary will reimburse the notary.)

         If a notary is denied a commission, the commission will be suspended or revoked, or a
civil liability is to be imposed, the notary is entitled to a hearing.

       In two instances a person shall not have a right to a hearing: The Secretary of State has,
within one year previous to the application, denied or revoked the applicant‟s application or
commission or the Secretary of State has entered an order after the notary has resigned or expired
finding that the applicant has committed or omitted acts constituting grounds for suspension or
revocation of a notary public‟s commission.

      Hearings are conducted by administrative law judges employed by the Office of
Administrative Hearings. Each judge has at least 5 years‟ experience as a lawyer.

        The procedure begins with the filing of an accusation or a statement of issues85 spelling
out what the notary allegedly did wrong and what law was violated. If the Secretary files the
accusation, a Notice of Defense must be included. The notary must return this notice within 20
days or the right to a hearing is waived. Notice the 20 days begins ticking when the Secretary
mails or serves the notary so if the mail does not arrive or is stolen or slow, this could be a
problem. The notary‟s rights to a hearing are maintained by delivering or mailing the Notice of
Defense within the 20 days. The Notice must be signed and should explicitly request a hearing if
one is desired. Various objections may be made within the Notice; indeed, some, if not made
there, are waived. The notary may wish to consult an attorney to see if any objections are
applicable. The point is there is very little time. The notary must move without delay.

        The Secretary may offer the accused notary a stipulated settlement after serving the
notice of defense.

        Within a further 15 days, the notary may request a list of the witnesses the Secretary will
present and inspect various other documents. The Secretary may make the same requests of the
notary. If either party fails to supply the material sought, the other party can make a motion to
the judge to “compel discovery.” This motion must be made within 15 days of the offending
party evidencing a refusal or within 30 days of the request being made and not honored,
whichever is longer. The motion triggers a hearing within 15 days of the motion being made,
although the judge can delay that hearing for good cause. The judge has 15 days to grant or deny
the motion (unless the parties extend this time.) Any portion of the motion which the judge
grants does not become effective until 10 days after the parties are notified.

       At any time before a decision is made, the Secretary may file an amended or
supplemental accusation. The notary is then to be given reasonable time to prepare a defense to
the new situation.
85
     In the following discussion, “accusation” will be used but the principles also apply to the statement of issues.


                                                             61
        A prehearing conference may be scheduled upon motion of the parties or by decision of
the judge. Reasonable notice of the date must be provided. The conference may be conducted
electronically, including by telephone or television.

        Hearings occur in Oakland or in the counties of Los Angeles, Sacramento or San Diego.
The Secretary can change the place of the hearing but the notary needs to make a motion to the
judge to do so. The hearing must be announced by notice at least 10 days before it is held. The
hearing is recorded, either by a court reporter or (with permission of the parties) electronically.

       The rules as to what evidence can be presented will be less stringent than in a regular
(non-administrative) courtroom.

        If the judge is not deciding the case, the Secretary has 100 days to do so. If the judge
heard the case alone, the judge, within 30 days, forwards a proposed decision to the Secretary.
The Secretary has a further 30 days to send the proposed decision to the parties. The Secretary
has 100 days after receiving the decision to act upon it. If the Secretary does not, the judge‟s
decision is final.

        A notary has 15 days after being served with the decision (though not later than the
effective date of the decision) to apply to the Secretary pointing out “a mistake or clerical error
in the decision.” If the Secretary does nothing about this application in 15 days (longer if the
Secretary specifies), it is denied. The Secretary may modify the decision on its own initiative
within 15 days of having issued it.

       A motion for reconsideration, if desired, must be filed within 30 days of the date the
Secretary mailed the decision or by the date the Secretary specifies in a letter accompanying the
decision. The motion must include additional evidence.

       Whether or not the notary sought reconsideration, the notary can petition for judicial
review. This must be done within 30 days of the last day on which reconsideration could be
ordered by the Secretary.

       The decision is effective 30 days after it is delivered or mailed to the notary (though the
Secretary can make it effective sooner or later than 30 days).

        If a notary does not file a Notice of Defense and receives a decision, the notary has 7
days to make a motion to vacate the decision (and eventually hold a hearing.) The notary must
show good cause, which includes, but is not limited to, “failure to receive notice served pursuant
to Section 11505” and “mistake, inadvertence, surprise, or excusable neglect.” Although the
notary has 7 days after being served, the Secretary‟s ability to grant the motion may expire 7
days after the default decision is mailed so the notary has no time to waste.

        If a notary‟s commission has been revoked or suspended, the notary may, after one year,
petition the Secretary for reinstatement or reduction of the penalty. The former notary will be




                                                 62
afforded the opportunity to present written or oral argument. If the Secretary denies the petition,
the notary must wait a year to ask again.

      Resigning a commission (or letting it expire) may not stop disciplinary action for acts
committed or not done while a notary.

       This discussion of the disciplinary process is general. For details and options, the notary
should consult an attorney.

        Anybody who entices a notary to perform an illegal notarial act and who knows the
notarial act is illegal is guilty of a misdemeanor. New law effective January 1, 2006 “makes it
clear that a person who solicits, coerces or influences a notary public to improperly maintain” the
notary‟s journal is guilty of a misdemeanor.

       The Secretary may suspend a commission for a specified time. Thirty days after the
suspension is complete, the Secretary shall ask for a certified copy of the notary‟s journal
including at least the entries beginning 30 days before the suspension and ending 30 days after
the suspension was ended. Presumably the suspended dates should have no entries. The notary
has 30 days to provide the Secretary with this material.

        Once the commission is revoked, the former notary must deliver all “notary public
records and papers” to the county clerk where the notary‟s oath was filed. Willful failure or
refusal to do is a misdemeanor and opens the former notary up to personal liability for anyone
who suffers injury because of this situation.

       The Secretary cannot place a notary on probation or restrict the terms of the commission.

               In considering discipline, the Secretary may consider, among others, the
following factors:
               (1) Nature and severity of the act, offense or crime under consideration.
               (2) Number and/or variety of current violations.
               (3) Evidence pertaining to the requisite honesty, credibility, truthfulness, and
               integrity of the applicant or commissioned notary public.
               (4) Actual or potential harm to the general public, group, individual or client.
               (5) History of complaints received by the Secretary of State.
               (6) Prior disciplinary record or warning from the Secretary of State.
               (7) Circumstances or evidence in mitigation.
               (8) Circumstances or evidence in aggravation.
               (9) Prior disciplinary record of occupational, vocational or professional license.
               (10) Evidence of rehabilitation.
               (11) Bench warrants or arrest warrants that prevent the Secretary of State from
               determining whether an applicant or commissioned notary public possesses the
               requisite honesty, credibility, truthfulness, and integrity to fulfill the
               responsibilities of the office pursuant to Section 8201.1 of the Government
               Code. In such cases the Secretary of State may hold the application and request
               additional information from the applicant or deny the application.
               (12) Criminal record.
               (13) In the case of a criminal conviction, the time in which the offense occurred
               in relation to the act, offense or crime under consideration.



                                                       63
                (14) Reports generated by law enforcement agencies.

       The Secretary may consider several factors in mitigation when deciding what discipline
to impose. These include cooperation, continuing education, amendment of business practice,
cooperation in investigation, repentance and new practices, and passage of time without
problems.

        Conversely, the Secretary can consider several factors aggravating the situation under
review including previous warnings, incompetence, disciplinary action, or failure to submit
journal; evidence the offense was committed knowingly or with premeditation; failure to
cooperate in the investigation; evidence the behavior forms a pattern; failure to comply with the
Secretary‟s suggestion of corrective actions; and fraud or gross negligence.

       Two strikes and a notary is out. The recipient of a second disciplinary action from the
Secretary of State is permanently barred from a commission.

         The Secretary may publish in a newsletter or elsewhere notice of the disciplinary actions
taken.




                                                     64
                                      Chapter Highlights:

       A notary who is found to have erred can have the commission suspended or revoked and,
in either case, be liable to pay civil penalties.

      There is a detailed due process procedure afforded to the notary.




                                               65
                                            Chapter 17:

                          Signing Mortgage Loan Documents
        A real estate loan taken out in California requires documents to be signed before a notary
public. In the nation, single family home mortgage originations accounted for $2.75 trillion in
2004.86 46% of those were refinances87 (commonly called “refis”.) That‟s a lot of business for
notary publics.

        Typically, a consumer calls a lender directly or, more commonly, goes through a
mortgage broker to buy or refinance a home. The broker evaluates the customer‟s credit and the
ratio of the proposed loan to the value of the house. Numerous third parties become involved—
credit agency, escrow company (this is the important one for the notary), title, appraiser. The
broker submits an application on the consumer‟s behalf to a lender. Once the application is
approved, the broker meets whatever conditions the lender wants. The rate is then locked and the
lender prepares loan documents. The loan documents are transmitted (usually by e-mail) to the
escrow company which prints them and either has the borrower(s) come in to sign the documents
(“docs”) or has a notary public go to the borrower. (Purchases are of little interest to the
freelance notary because those are signed at escrow, which provides their own notary.)

        Here is a business opportunity for the notary public—watching borrowers sign those loan
docs and notarizing their signatures. A notary can charge $150 for this service. The notary is then
called a loan signer or doc signer, though the borrowers are doing most of the signing. Additional
charges are made if the notary travels out of the area. Not all of this is the notary fee (see the
chapter “What a Notary Can Charge.”) Much of the fee is for making sure the borrower signs the
documents correctly.

        Frequently the escrow company will have employees who are notaries and scooping up
the local signing business. The notary has 3 possibilities. If the notary knows (or can become
acquainted with) loan officers employed at mortgage brokers, the loan officers can request this
particular notary be used. The author knows one notary making $50,000 a year using this
method. [Admittedly, this money was made in the good times of the early 2000s. By 2007,
difficulties in the mortgage loan industry have probably severely (if temporarily) cut this figure.]
Secondly, the notary can sign up with a notary signing service. Thirdly, the notary might contact
escrow companies in far away cities who might need signing services near the notary. For
example, a mortgage broker in Orange County might well do a loan in San Francisco. The
escrow, probably in Orange County, would normally use a signing service to handle the loan
docs in San Francisco—but a notary in San Francisco might find a way to induce the escrow to
use that notary.



86
   Anonymous, Mortgages and Refinancing, 2005,
http://johnpenrod.typepad.com/mortgages_refinancing/home_equity/
87
   Anonymous, Mortgages and Refinancing, 2005,
http://johnpenrod.typepad.com/mortgages_refinancing/home_equity/


                                                    66
        Years ago the phone company ran an ad campaign—the best business calls are personal.
That‟s still true. People in the mortgage industry have to know the notary—and, better, have a
relationship with the notary—in order for the notary to have opportunities to do loan signings.

        There are several points the notary as doc signer should remember. The borrower will
want copies of everything being signed. If the broker or escrow does not provide copies, the
notary must. Ask the borrower what time it would be convenient to sign, as opposed to telling the
borrower, “I‟m available at …” Be on time. If the borrower complains the notary was late, the
chances of the notary getting repeat business from the escrow company or loan officer pale. The
notary should be dressed neatly. A business suit is not necessary but sets a good tone. Don‟t
drink alcoholic beverages before arriving for a signing appointment. (It‟s happened.) If the
notary is a smoker, don‟t smoke in the borrower‟s house.

        The borrower must sign the name exactly as it appears on the docs. If the docs read
“Susan Dower,” signing them “Susan A. Dower” is going to present problems. The notary
should not criticize the loan: “Geez, this interest rate is awfully high” or “What an awful loan. I
saw a much better one when I was signing yesterday” or “They‟re sure killing you on these
fees.” The notary has not reviewed the borrower‟s credit or the appraisal and cannot really give
an informed opinion as to the appropriateness of the loan for the borrower‟s situation. If the
borrower cancels the loan because of something the notary said (as has happened), there is going
to be one very unhappy loan officer whose main purpose in life is to make sure that notary never
signs docs again for that officer (or for anyone in that officer‟s company).

        A good loan officer will have provided a phone number to be reached at during signing to
the borrowers. The notary should suggest the borrowers call the loan officer with if any loan
questions arise. On a refinance of property which the borrower lives in, the borrower has 3 days
to cancel the loan, not counting Sundays or major holidays (called the right to rescission).
Instructions on how to do this are included in the loan docs. So even if the loan officer is not
reachable, the borrower may want to sign the docs and ask the questions the next day (to avoid
another signing fee.) (If the loan is for a property the borrower rents out, there is no right to
rescission. A possible downside to this right is that it holds up funding the borrower‟s loan for
those 3 days.)

        The notary should pay attention. As each page is turned over, has the correct signature
been applied? One notary had to make three appointments to sign one set of loan documents
because the notary did not perform correctly, including not getting the deed of trust signed
(perhaps the most important of all the pages, at least to the borrower.) Whoever hired that notary
for the signing is going to have qualms about doing so again.

        After the signing, the notary should return the docs promptly to escrow by overnight
service. If the notary knows who the loan officer is (if the notary is working for a signing service,
this information may be kept from the signer), the notary should call to report the signing is
completed. No one actually does this so the notary who does will really stand out.




                                                 67
                                      Chapter Highlights:

       Overseeing the signing of mortgage loan documents can be a profitable sideline for the
notary.

      Notarizing documents is only part of the notary‟s total fee for the signing assignment.




                                               68
                                       Chapter 18:

                                    What to Do Next

        Sign the Declaration or Certification Under Penalty of Perjury
(http://mansfieldfc.com/notary/declaration.html) and mail, fax or scan and e-mail a copy along
with a legible copy of a photo ID to the school or scan.

         Our address: Apollo Correspondence Classes, 3004 Deodar, Suite B, Costa Mesa, CA
92626.

        Our fax number is 801 720-1967. You may want to check our web site
(http://mansfieldfc.com/notary) to make sure the fax number has not changed.

         Our e-mail: apollo@mansfieldfc.com.

       Once your Declaration has been received, your Proof of Completion will be mailed
to you. An original proof of completion must be attached to the notary public application
when submitted to the Secretary of State.

       Register at http://www.cps.ca.gov/TakeATest/Notary/schedule.asp for the test
administered by the Secretary of State. Good luck!




                                               69
        Thank you for choosing

     Apollo Correspondence Classes

       as your education provider.


We wish you a long and prosperous career

           as a notary public!




                   70

								
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