BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1050 (Monning)
As Amended March 26, 2014
Hearing Date: April 8, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Notaries Public: Verification of Identity: Notice
DESCRIPTION
This bill would add a statutory notice to specified forms
completed by a notary public indicating that the notarial
certification verifies only the identity of the person who
signed the document, and not the truthfulness, accuracy, or
validity of that document. That notice would be included, as
specified, in a certificate of acknowledgment, proof of
execution, and jurat.
BACKGROUND
A notary public is a public officer appointed and commissioned
by the Secretary of State to serve the public in non-contentious
matters generally concerning estates, deeds, powers-of-attorney,
foreign and international business, and other written
instruments. Occasionally, an individual who is party to a more
sensitive formal agreement, such as a child custody agreement, a
confidential marriage license, or an advance healthcare
directive, must have the agreement notarized before it can enter
into force. A notary's main functions are to take
acknowledgements of various written instruments, administer
oaths and affirmations, take depositions and affidavits, certify
copies of powers of attorney under the Probate Code, demand
acceptance and payment of foreign and inland bills of exchange
or promissory notes, and to protest nonpayment and nonacceptance
of bills and notes.
A certificate of acknowledgment is the form most frequently
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completed by a notary public. In the certificate of
acknowledgment, the notary public certifies: 1) that the signer
personally appeared before the notary public on the date
indicated in the county indicated; 2) the identity of the
signer; and 3) that the signer acknowledged executing the
document. A notary public may also certify this information on
a proof of execution of an instrument, or a jurat (a
certification added to an affidavit or deposition).
This bill, sponsored by the Secretary of State, would add a
statutory notice to specified forms that the notarial
certification verifies only the identity of the person who
signed the document to which the certification is attached but
not the truthfulness, accuracy, or validity of that document.
CHANGES TO EXISTING LAW
Existing law authorizes the proof or acknowledgment of written
instruments before specified officers of the state, including
notaries public. (Civ. Code Secs. 1180-1183.)
Existing law provides that the acknowledgment of an instrument
may not be taken unless the officer (notary public) taking it
has satisfactory evidence, as specified, that the person making
the acknowledgment is the individual who is described in and who
executed the instrument. (Civ. Code Sec. 1185.)
Existing law provides that, when an instrument is executed prior
to being presented to a notary public for certification of the
document signer, a notary public may certify a proof of
execution after verifying the identification of the signer or
person who witnessed the execution of the document (subscribing
witness). (Civ. Code Sec. 1195.) However, a proof of execution
may not be used for certain documents such as a power of
attorney, grant deed, mortgage, deed of trust, quitclaim deed,
or security agreement. (Civ. Code Sec. 1195(b)(1).)
Existing law provides that a public notary may execute a jurat,
as specified, to be attached to an affidavit or deposition
testimony whereby a person swears under oath that the statement
contained in the affidavit or deposition testimony are true and
correct. (Gov. Code Sec. 8202.)
Existing law provides a form certificate of acknowledgment,
proof of execution, and jurat for a notary public to use when
certifying the identity of a person signing a document. (Civ.
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Code Secs. 1189, 1195; Gov. Code Sec. 8202.)
This bill would add a statutory notice to a form certificate of
acknowledgment, proof of execution, and jurat that the notarial
certification verifies only the identity of the person who
signed the document to which the certification is attached, and
not the truthfulness, accuracy, or validity of that document.
This bill would require that notice, in not less than 12-point
boldface font type, to be inserted in a box at the top of the
certificate of acknowledgment, proof of execution, or jurat.
COMMENT
1. Stated need for the bill
The author writes:
When people are unfamiliar with the meaning and effect of a
notary's seal and signature, there is an opportunity for
criminals to pass deceptive legal documents claiming a false
right to money, authority, or real property by inferring,
suggesting, or stating that the notary's seal and signature
constitute an official endorsement of authenticity.
SB 1050 seeks to reduce fraud by including a clear consumer
notification statement as to the limited effect of a notary's
seal and signature. People unfamiliar with notary seals who
are studying a fraudulent document presented to them will not
give undue consideration to a notary seal as an official
endorsement of authenticity and legal correctness.
2. Consumer notice statement
Existing law provides for the regulation of notaries public and
specifies the notary public oath, which includes that the person
signing the legal instrument personally appeared before the
notary public and the person provided satisfactory identifying
documents proving the person's identity. This bill would add a
consumer notice statement to a certificate of acknowledgment,
proof of execution, and jurat form that the notarial
certification verifies only the identity of the person who
signed the document, not the truthfulness, accuracy, or validity
of that document.
The author states that this bill would provide public awareness
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that a notary's seal on a document has limited effect and does
not provide official endorsement of the authenticity or legal
correctness of a document that has been notarized. Further, the
author argues that "[c]urrent notary forms contain somewhat
dense language that relate to notaries' affirmation of the
identity of the signer, but there is no language included in
notary certificates indicating that the notary's acknowledgement
does not verify or validate the content of documents bearing a
notary's seal and signature." (Emphasis in original.) The
author argues that this bill will help reduce fraud by including
a clear consumer notification statement as to the limited effect
of the notary's seal and signature.
The Secretary of State (SOS), sponsor of this bill, has reported
receiving inquiries from the public regarding the validity of
documents that bear a notary's seal and signature. The SOS
states that "[w]hen people are unfamiliar with the meaning of a
notary's seal, it creates an opportunity for criminals to imply
or falsely state that a notary's seal and signature represent an
official endorsement or approval of the document. One recent
instance of notary fraud involved false property titles and led
to dozens of people being cheated out of homes and rental
properties worth millions of dollars. The victims may have been
more suspicious about the fraudulent transactions if they were
warned that a notary's seal did not guarantee the legal
correctness of [the] property transaction documents." The SOS
asserts that the consumer protection statement in this bill
would protect businesses and members of the public, as well as
commissioned notaries from having their work misrepresented or
used for illegal purposes.
In order to better inform the public that a notary public merely
verifies identification of the signer, not the validity of the
document itself, this bill seeks to educate the public as to the
function of a notary by clearly stating the role of the notary
in a notice to be included in a certificate of acknowledgment,
proof of execution, or jurat. Further, by specifying the exact
location, presentation, and font type of the notice required to
be placed on the notarial certification, this bill would alert a
third-party receiving the document signed by the individual that
the document, though notarized, is not necessarily legal,
accurate, or valid merely because of the notarization.
Support : None Known
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Opposition : None Known
HISTORY
Source : California Secretary of State
Related Pending Legislation : AB 2747 (Asm. Comm. on Judiciary,
2014) would impose a $1,500 civil penalty on a person who
willfully fails to discharge fully and faithfully any of the
duties or responsibilities required of a notary public. This
bill is currently in the Assembly Committee on Judiciary.
Prior Legislation :
AB 625 (Quirk, Ch. 159, Stats. 2013) added inmate identification
cards issued by the California Department of Corrections and
Rehabilitation to the list of documents presumed to prove the
identity of an incarcerated individual who executes a written
instrument.
AB 886 (Runner, Ch. 399, Stats. 2007) required, among other
things, notaries public to determine by satisfactory evidence
only that a person acknowledging an instrument is the individual
who is described in and who signed the instrument, and to
certify the document under penalty of perjury. AB 886 also
required notaries to obtain the thumbprint of a party signing a
document where the document to be notarized is a deed, quitclaim
deed, deed of trust affecting real property, or a power of
attorney.
AB 2062 (Nakano, Ch. 539, Stats. 2004) required a notary public
to use a form jurat when authenticating the identity of a person
signing an affidavit.
AB 1090 (Tucker, Ch. 1044, Stats. 1993), among other things,
revised the criteria for determining whether an individual has
presented satisfactory evidence of identity for a notary public
to take an acknowledgment of an instrument.
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