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We offer the service of Notary Public, not only to facilitate your normal transactions, but also because we are aware of ALL the options available from a Notary. Most people have no idea of the full gamut of what a Notary can do.
Because there are major misunderstandings about the powers of a Notary Public, we would like to provide background on the specific powers of a Notary and Definitions required.
Notary Public definition and jurisdiction.
A California Notary Public is a commissioned public officer appointed for a term of four (4) years by the California Secretary of State to carry out the official duties of the Notary throughout the state, but not beyond the state borders.
There is absolutely NO TRUTH to the myths that becoming a California commissioned Notary Public automatically transforms the Notary into:
1. A public employee; or
2. An officer of the court;
3. Or a civil law Notary. As of 2008 Louisiana, Puerto Rico, Alabama and Florida commission qualifying attorneys as civil law Notaries in parallel with the commissioning of those states’ more numerous non-attorney common law Notaries. The civil law Notary was conceived to encourage commerce and document exchange with Latin nations and are likely to spread to other states.
More information is contained below.
The official source of laws relating to notaries public in California is the “Notary Public Handbook”, available on the Secretary of State’s Website at www.sos.ca.gov/business/notary/natary.htm
Following the Letter of the Law
Notaries should use their conscience, common sense and guidelines such as “The Notary Public Code of Professional Responsibility” (National Notary Association, 1998) to make ethical decisions. It is up to every Notary to go above and beyond the bare minimum to protect the integrity of public duty.
Notarization.
Notarization is the authentication of a signature as genuine or the verification that a statement was made under oath. Notarization does not guarantee the truth or accuracy of statements in the document nor does it legalize or validate a document.
Notarization on any document does not constitute any adhesion, nor does it alter one’s status, standing, or state of mind in any manner. Notarization does not create entrance into any foreign jurisdiction.
Commission Applicant Qualifications.
All Notary commission applicants must be at least eighteen (18) years old; must complete and pass a proctored, written examination prescribed by the Secretary of State; must have fingerprints electronically scanned for a background check by the state Department of Justice (DOJ); fingerprint images must additionally be submitted to the Federal Bureau of Investigation *FBI) for a federal summary of criminal information; must satisfy the Secretary of State that the applicant is a person of honesty and integrity; must not have been convicted of a felon or of a crime involving moral turpitude; is expected to be able to read, write and understand the English language; must complete and pass a six (6) hour education course regarding the Notary’s functions and duties; must submit a 2” x 2” color passport photograph of the applicant; must pay an application fee and must also pay a print-rolling fee at a “Live Scan” fingerprint scanning site; substantial and material misstatement or omission in the application is cause for revocation, suspension or refusal to grant a Notary commission; must be in full compliance with child support orders and not delinquent on child support payments.
Citizenship.
U.S. citizenship is not required to become a California Notary. A 1984 U.S. Supreme Court decision, Bernal v. Fainter, declared that no state may deny a Notary commission merely based on the lack of U.S. citizenship.
Requirements.
California Notaries are required to take an oath of office and file it with the county clerk in the same county as their principal place of business along with the Notary $15,000 surety bond. Filing fees vary by county. The surety for the Notary’s bond must be an approved, state-licensed bonding company. A deposit of funds may NOT be made in lieu of a surety bond.
Journal
California Notaries are required to keep one active sequential journal at a time of all acts performed as a notary public. It must be kept in a locked and secured area, under the direct and exclusive control of the notary public. The journal shall include the following items:
1. Date, time and type of official act;
2. Character of every instrument;
3. Signature of each person whose signature is being notarized;
4. Statement of the type of identification presented based on satisfactory evidence;
5. The fee charged for the notarial service;
6. Thumbprint, when document affects real property or power of attorney.
Liable for All Damages.
The Notary bond protects the public, not the Notary, from a Notary’s misconduct or negligence. The Notary and surety company may be sued for damages resulting from Notarial misconduct. The surety is liable only up to the amount of the bond, but the Notary may be found liable for any amount of money.
Public-Employee Notaries
Becoming a commissioned Notary Public does NOT automatically make a Notary a state or other municipal employee.
The Secretary of State may appoint and issue a Notary commission to state, county, city and public district employees to act for the agencies in which they are employed. An authorized representative of the particular agency in which the Notary’s services are needed is required to submit a signed statement. Provided this signed statement is filed, not state or county appointment of filing fees need be paid.
The employing agency may pay the premium on the Notary’s bond and the cost of other required supplies from public funds at its disposal.
Any fees collected by a public-employee Notary must be turned over to the agency for which the Notary works. The agency is required to deposit these fees into the same fund from which the Notary’s salary is paid.
Elected or Appointed Officers
Becoming a Notary does NOT automatically make the Notary an elected or an appointed officer of the court or any other venue.
The proof or acknowledgment of an instrument may be made before a notary public at any place within this state, or within the county or city and county in this state in which the officer specified below was elected or appointed, before either:
1. A clerk of a superior, municipal and justice court;
2. A clerk of a board of supervisors;
3. A county or city clerk;
4. A retired judge of a municipal or justice court;
5. A court commissioner of a municipal or justice court;
6. A district, county or city attorney;
7. Secretary of the Senate;
8. Chief Clerk of the Assembly.
CALIFORNIA OFFICIAL NOTARIAL ACTS
California Notaries are authorized to perform the following official acts:
· Acknowledgments: are typically executed on documents affecting real property that will be publicly recorded by a county recorder. Notaries must sign all California “all purpose” acknowledgments under penalty of perjury.
· Certified Copy of Power of Attorney: in addition to notarizing signatures on powers of attorney, Notaries may certify copies of such documents. The Notary compares the copy to the original to verify that the copy is, in fact, identical to the original power of attorney document. The Notary should personally make the photocopy that is to be certified to ensure that the copy is identical to the original.
· Copy Certification by Document Custodian: California Notaries are not allowed to certify copies of any document except powers of attorney and Notary journal records. The permanent keeper of the document (the document custodian) certifies the copy, not the Notary. The document custodian appears before the Notary to make an oath or affirmation regarding the truthfulness of the statement. The Notary witnesses the signing of the statement, and is identified by the Notary who executes a jurat.
· Deposition: is a signed transcript of the signer’s (deponent) oral statements taken down for use in a judicial proceeding. The Notary administers the oath or affirmation, completes and signs the jurat then affixes the Notary seal.
NOTE: California Notaries have the power to take depositions, meaning, to transcribe the words spoken aloud by a deponent, but this duty is most often executed by trained and certified court reporters who have the authority to administer oaths or affirmations.
· Affidavit: is a signed statement made under oath or affirmation by the signer (affiant) and is used for a variety of purposes both in and out of court. The Notary administers the oath or affirmation, completes and signs the jurat then affixes the Notary seal.
· Jurat: is a part of the verification procedure. In notarizing forms of written verification requiring an oath or affirmation by the signer, the Notary normally executes a jurat. The purpose of a verification is to compel truthfulness by appealing to the signer’s conscience and fear of criminal penalties for perjury. In executing a jurat, the Notary certifies that: the signer personally appeared on the date in the state and county indicated; the signer was positively identified through satisfactory evidence; the signature was witnessed at the time of notarization; and the oath or affirmation was administered to the signer.
· Administer Oaths: a solemn, spoken pledge to a Supreme Being. It is a promise of truthfulness. One may be subject to criminal penalties for perjury should he or she fail to be truthful.
· Administer Affirmations: a solemn, spoken pledge on one’s own personal honor with no reference to a Supreme Being. It is a promise of truthfulness. One may be subject to criminal penalties for perjury should he or she fail to be truthful.
· Proof of Execution: The Notary certifies that the signature of a person who does not appear before the Notary, the principal signer, is genuine and freely made based upon the sworn testimony of another person who does appear, the subscribing witness. Because of their high potential for fraudulent abuse, this procedure is not permitted with real estate documents, except for trustee deeds resulting from foreclosure and deeds of reconveyance.
· Certificate of Presentment: demand acceptance and payment of a negotiable instrument such as foreign and inland bills of exchange, bank draft, or promissory notes.
· Certificate of Protest: protest nonacceptance and nonpayment of a negotiable instrument such as foreign and inland bills of exchange, bank draft, or promissory notes.
NOTE: With regard ONLY to the protest of nonacceptance or nonpayment of negotiable instruments, it is the duty of California Notaries to exercise any other powers and duties that by the law of nations and according to commercial usages, or by the laws of any other state, government or country, may be performed by notaries.
· Issue confidential marriage licenses only upon prior approved written authorization by the county clerk.
Not all states disclose to or educate their Notaries Public that the Notary is also authorized to offer services related to commercial transactions: Notary Acceptor, Witness, CDM, Administrative Remedy - plus a few other things.
UNAUTHORIZED ACTS IN CALIFORNIA
· Notarize the Notary’s Own Signature
· Certified Copies: California Notaries are not allowed to certify copies of any document except powers of attorney and one’s own Notary journal records.
· Incomplete documents: California Notaries are prohibited from taking an acknowledgment or a proof of execution of any document that is not complete. The signer should fill in any blanks, or line through each space in ink, or write not applicable or “N/A”.
· Disqualifying Interest: a Notary may not perform any notarization related to a transaction in which he or she has a direct or beneficial interest. A financial or beneficial interest exists when the Notary is named in a financial transaction or when the Notary receives an advantage, right, privilege, property or fee valued in excess of the lawfully prescribed Notarial fee.
NOTE: Certain men and women are exempt from this beneficial and financial interest provision. A Notary who is an agent, employee, insurer, attorney, escrow officer or lender for a man or woman signing a document may notarize the document without being considered to have a disqualifying interest. For example, a real estate agent can notarize a document relating to a property transfer even if the agent derives a commission from that transaction.
· Enforcement authority: California Notaries have no lawful authority to issue and enforce a Summons, or to issue and enforce a Subpoena, or to issue and enforce a Warrant for Arrest.
· As of 2008, no commissioned civil law Notaries exist in California.
DEFINITIONS
L.S.: The letters “L.S.” – from the Latin locus sigilli, meaning “location of the seal” - indicate where the Notary seal should be placed on the document. Only an embosser seal, used in addition to an inking seal, should be placed over these letters. The inking seal should be placed near but not over the letters.
SS. or SCT.: sometimes appear after the venue; they abbreviate the traditional Latin word, scilicet, meaning “in particular” or “namely.”
Hand: means signature.
Authentication or Legalization: Documents notarized in California and sent to other states may be required to bear proof that the Notary’s signature and seal are genuine and that the Notary had authority to act at the time of notarization. In California; proof of the Notary’s commission is in the form of an authenticating certificate attached to a notarized document by either the county clerk’s office where the Notary’s oath and bond are filed or the Secretary of State’s office. These certificates are also known as certificates of authority, certificates of capacity, certificates of authenticity, certificates of prothonotary, and “flags.”
To send to countries that are not subscribing members to the Hague Convention, a chain authentication process may be necessary, and additional certificates of authority may have to be obtained from the U.S. Department of State in Washington, D.C. and a ministry of foreign affairs in the particular foreign nation. Apostille and the Hague Convention: More than 90 nations, including the United States, subscribe to a treaty under the auspices of the Hague Conference that simplifies authentication of notarized documents exchanged between these nations. The official name of this treaty, adopted by the Conference on October 05, 1961, is the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents.
Under the Hague Convention, only one authenticating certificate called an apostille is necessary to ensure acceptance in the subscribing countries.
In California, apostilles are issued by the California Secretary of State’s office. The procedure and fess are the same as for obtaining an ordinary authenticating certificate.
The apostille serves two (2) purposes:
A. Proof that the Notary was in good standing with the California Secretary of State at the time of the notarization and had the authority to act.
B. The document attached to the Apostille is admissible as evidence.
NOTE: The apostille does not guarantee the truth or accuracy of statements in the document nor does it legalize or validate a document.
THE HISTORY OF NOTARIES
The profession of notary draws its origins from the Roman tabelliones and the more ancient scribes in the Ancient Egyptian civilisation.
The tabelliones appeared between the second and third century AD. They were a class of professionals who were present wherever required for legal business, had their own technique and whose task, according to the jurist Ulpianus (3rd century A.D.) was: “instrumenta formare, libellos concipere, testationes consignare”.
The gradual development of the profession of notary in Ancient Rome was fostered by the influence of other peoples that Rome had absorbed in its Empire and who gradually became its citizens. The peoples of the East, in particular, made a major use of written documents, which a notarial office, sometimes of a public nature, was responsible for. These notarial documents had a very high value as they either established rights or had a probative force.
The tabelliones worked at the archives or the forum, opening offices known as stationes. Following the edict of Antonius Pius acknowledging their right to a salarium, they started insisting on fees that Diocletian set in the edictum dei pretiis.
In the next evolution, the notarii, became secretaries to the authorities, and the Emperor first and foremost. As of the 4th century, the notarii in the imperial service were organized in a Schola, one of the most important of the palace, reaching a very high rank and fulfilling important duties.
Justinian introduced new regulations for the Corpus iuris, aimed at giving a systematic organisation to the profession of tabellio and the form and effectiveness of documents. The notary was required to read out the document to the parties and ask them if it corresponded to their will. The parties then signed the document, which the notary had the duty to deliver to them. This document was seen as having higher probative force than private deeds.
With Charlemagne, the instruments drafted by notaries acquired the same force and effect as a conclusive judgment. Between the 11th and 12th century, the profession of notary became a noble one and the ars notaria became a valid instrument of juridical unification. In this period, the eminent Rolandino da Passaggeri (Bologna, 1234-1300) rose to the fore. Rolandino may be taken as an example of that civil and political commitment that many expressed during the Middle Ages. He is considered the greatest author of civil law. His Summa artis notariae, written in around 1255, continued to be used as a basic text for notaries throughout Europe until the 17th century.
Throughout the Renaissance the profession of notary left an indelible mark on culture and civilisation. When Christopher Columbus discovered America, he took a notary (“escribano”) with him to certify the truth of what he saw and take possession of the land: “A las dos horas después de media noche pareció la tierra, de la cual estarían dos leguas….El …tomó, posesión de la dicha Isla por el Rey y por la Reina sus señores, haciendo las protestaciones que se requerían, como más largo se contiene en los dos testimonios que allí se hicieron por escrito”.
Since then, the profession of notary has spread across South and Central America, the Caribbean, all the way to Mexico and French-speaking Canada.
In France, Philip the Handsome (14th century) extended their duties and jurisdiction. In 1539 what would become the organisation of the profession of notary was already prefigured: deeds have to be written in French, preserved and record of their existence noted in a registry.
At the end of the French Revolution, the need is felt to attribute further importance to the role of the notary in society. With the Law of the 25th of Ventôse of the year XI (16th March 1803), Napoleon Bonaparte gave the institution of notary an organization, which despite a few changes, is still up-to-date and modern and serves as a basis for all the other notarial laws worldwide.
In spite of the profound changes and adaptation to the various national legal systems, the substantial strength of this law has allowed it to overcome time as well as social, political and economic changes.
NOTARIAL ETHICS
The law of each State determines the disciplinary code that applies to Notaries, who are to be under the constant supervision of their public authorities and collegiate bodies.
Owing to the public nature of the office they hold, notaries have a duty to act in good faith and with integrity towards those who request their services, the State and their colleagues.
To achieve the balance needed, a Notary must remain an impartial, disinterested party.
Choice of Notary is a matter for the parties alone.
Notaries are bound by the ethical rules of their profession at both state and national levels.
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