Witness certificates

posted Jan 18, 2017, 11:39 PM by Michael Rees   [ updated Jan 18, 2017, 11:41 PM ]

Discussed at our January 2017 meeting, Jenny sent in the following query to Greg at JP Branch:

I have a query regarding certifying identity.
 
As you are aware Banks ask us to certify that we confirm the identity of their mortgage customers which we now do via the JAG produced "Witness Certificate" forms.
 
Lately I have been asked to provide this same type of identity confirmation for online Finance companies on a form produced by that company.  My question is:  Are we as JP's covered legally if we sign these forms or should we have something similar to the Witness Certificate that covers a loan rather than a mortgage?
 
Look forward to your reply

As usual we had a swift response from Greg:

Many thanks for your email.
 
Under the Land Titles Act 1994 (the Act), lender obligations are quite distinct from, and separate to, the obligations on witnesses (including JPs and Cdecs) which come under section 162 of the Act. 
 
With respect to other types of lending (e.g., vehicle finance or unsecured personal loans), again, there is no statutory obligation on a JPQ or Cdec to complete a witness certificate or ID certificate for the lender. JP branch cannot comment on the potential legal liability to which a JPQ or Cdec might be exposed if they do complete such an ID certificate without reviewing the actual document (as these may vary from lender to lender).
 
Accordingly, as it is not a statutory obligation, neither the Justices of the Peace Branch (JP Branch) nor the lender can direct or compel a JP or Cdec to complete a witness certificate/ID certificate on behalf of a lender; this is a decision for the individual JP or Cdec. 
 
For a mortgage matter, if a JP or Cdec does decides not to complete a lender’s Witness Certificate then JP Branch recommends (as you note in your email) they complete the Department of Justice and Attorney-General’s (DJAG) Witness certificate for a mortgagor in Queensland. This certificate contains a disclaimer confirming the JP or Cdec has witnessed the Titles Registry form (and completed an ID check) in line with their section 162 obligations and not as an agent for the lender under section 11A; that is, they are not performing any due diligence role on behalf of the lender. However, again, JP Branch cannot require or compel a JP or Cdec witness to complete the DJAG certificate.
 
If I can be of further assistance, please contact me.
 
Regards & best wishes, Greg.

Jenny and I agreed it would seem beneficial to use a modified form of the Disclaimer stamp for mortgagor ID certificates as it applies to online finance companies who send borrowers our way. A suggested wording might be:

I identified the named borrower from the documents shown. I do not act as agent for the lender and do not relieve the lender from its legal obligations.

Michael R