Posted by Karen/OK on 1/4/09 12:12pm
Msg #273510

Hypothetical Question

The notary journal I use has a place for the signer's thumb print. The state of Oklahoma does not require these prints but I feel it is just one more safeguard against fraud, so I require it. I have had many remark about it but no one has refused. The other evening I had a signer that balked a little about doing it, but did. It made me wonder what I would do if someone did refuse to put their thumb print in my journal. Would that put up a red flag that perhaps he or she was not the person they represent themselves to be? Even though it isn't a legal requirement and if the I.D.s are as they should be, I would not feel secure about the signing. (I do know that if it happened, I would put a note in my journal that he/she refused the print.)
How would you feel?

Reply by Ardel Richter on 1/4/09 12:30pm
Msg #273513

Re: Hypothetical answer

Well, it would make me take a second look at their ID & the person in front of me. But, as it is NOT a requirement in OK (or AR), if I was & still am happy with the ID/person....end of story.
Over the many years I've been doing this, I've run across a small number of people who object to just about anything/everything. Frankly, I'm one of 'em. Like, I fail to see WHY an SS wants a copy of my auto insurance or DL. So, I personally wouldn't sweat the small stuff...someone who refuses to do what isn't required for me to do my job.

Reply by Linda_H/FL on 1/4/09 12:36pm
Msg #273516

Ardel, me too

"I fail to see WHY an SS wants a copy of my auto insurance or DL"

I never provide a copy of my auto insurance - they have absolutely no use for that and it's not their business. If I absolutely HAVE to provide a copy of my DL, it has all personal info blacked out - all that shows is my name and address.

Reply by Linda_H/FL on 1/4/09 12:32pm
Msg #273514

What does your handbook say? In FL, we can take a fingerprint/thumbprint for our journal but we cannot refuse to notarize a signature based solely on the signer's refusal to provide the print...

Unless a thumbprint is required by your state, adequate ID should be sufficient for you to perform your duties without concern....keep in mind that the thumbprint isn't going to help you identify the person and will only come into play when a problem comes up in the future - unless it's your practice (and you have the equipment and expertise) to run all fingerprints for identification through a national database. If you're not comfortable with those who refuse, how about instituting a practice where if they won't allow the thumbprint you require a secondary form of ID?

Just a thought and JMHO

Reply by Karen/OK on 1/4/09 12:37pm
Msg #273517

Good idea, Linda. Thanks. At least it would make me feel better.

Reply by Linda_H/FL on 1/4/09 12:43pm
Msg #273520

Les is right, Karen

Check with your SOS to make sure you have this discretion.

Reply by Les_CO on 1/4/09 12:33pm
Msg #273515

I would follow the OK Notary Law. Making up your ‘own’ rules could get you in trouble. You are a Public Officer, appointed and commissioned by the State (OK) and should do your job as such.

Reply by Karen/OK on 1/4/09 12:45pm
Msg #273521

I don't have my own rules, just want to take precautions to make sure the individual signing the documents is the right person. The refusal to put their thumb print in the journal would not prohibit my proceeding with the signing if all other forms of I.D. are acceptable; it would just make me a little apprehensive. As a notary I am entrusted to make sure, as much as possible, that the signer is who he/she says they are.

Reply by dickb/wi on 1/4/09 3:02pm
Msg #273534

Re: Hypothetical Question...Long but apropriate[spelling]..

taken from Notary Law Institute "The Notary"


James Tilford is one of his city’s most venerated,
respected citizens. He has served on the
city council over 12 years, and as mayor two
terms. He is the owner of the most popular
grocery store and pharmacy in town. James is a
generous contributor to all sorts of charitable
events and organizations. He’s friendly and loves
everyone, and everyone loves him.
James needed a quick notarization of his signature
to a bill of sale for a grand piano. He stepped
into his neighborhood bank, found a notary and
requested a notarization. Although the notary personally
knew James, she promptly asked James to
roll his thumb across a special ink-pad for his
thumb print in her notary journal. James objected
saying that no law in their state requires a signer’s
thumb print in a notary journal. The notary was surprised
by his refusal. She claimed that she had read
somewhere that a thumb print in a notary journal is
“required” as proof of the signer’s identity, and the
journal she purchased has places for thumb prints.
The notary refused to notarize for James because
he refused to place
his thumb print in
the notary’s journal.
James had to go elsewhere
for the notarization.
Shortly after this
unfortunate
encounter, James followed
up on his sus
picions: notaries in 49 states have no legal authority
to require thumb prints in notary journals, and
if a notary were to require thumb prints, suspected
violations of constitutional due process and equal
protection are raised.
James is correct. The only place and circumstance
a notary is authorized by law to obtain a
signer’s thumb print in a notary journal is for
notarizations on real estate conveyances in
California. A California notary who requires a
thumb print in her journal for a transaction unrelated
to real estate conveyances plays fast and
loose with the rule of law, and stands on thin ice.
The same goes for any notary anywhere else in the
United States who obtains signer thumb prints in
their notary journal. Just because a notary journal
has a place for a signer’s thumb print does not
legally authorize the notary to take thumb prints.
Such a journal is materially misleading and
flawed. Such a journal can mislead a notary into
notarial misconduct.
The 5th and 14th Amendments to the United
States Constitution
provide each of us
guarantees of equal
protection and due
process of law. “No
state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the Unites States; nor shall any
state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
As citizens of the United States, we enjoy certain
Constitutional guarantees of protection of fundamental
rights against undue abridgement by government
and its officials. These rights are many,
and include the right to certain degrees of privacy
and the right to equal access to the services of government
at the federal, state and local levels. We
have the right not to bear government-issued I.D.
We have the right not to be discriminated against
on the basis of “suspect classifications” such as age,
gender, national origin, race, religion, or political
persuasion. We have the right not to provide our
fingerprints to government (albeit our refusal to do
so may exclude us from certain opportunities, such
as military service) unless ordered by court. We
have the right not to be subjected to government
restrictions which are neither authorized by law
nor constitutionally defensible.
When a notary requires a document signer to
place a thumb print in her notary journal, that
notary arguably violates that signer’s 5th and 14th
Amendment rights. The notary is a public official
of her state. The notarial service the notary provides
is a service of state government. It is never a
“private” matter. The notary’s journal is an official
public record of a government service. Hence, the
notary is subject to all legal restraints imposed by
the United States Constitution and the laws of the
notary’s respective state.
Our finger prints are part of the most private elements
of our identity. To the same extent a
motorist may refuse to give a breathalyser test
when pulled over by the highway patrol, a person
may refuse to give a DNA sample until courtordered,
all under the protection of due process
and equal protection of law. The taking of thumb
prints in notary journals, where not required by
state law, is an assault on our common sense of
equal protection and due process under the law.
The wrongful taking of thumb prints in journals
raises questions about the admissibility of such evidence
in a court of law. Arguably, as a matter of
law, thumb printing notary journals is an exercise
in futility; a poorly conceived idea that conflicts
with sound legal reasoning.
The California journal thumb print model is
peculiar. The functional practicality of taking a
signer’s thumb prints for notarizations of real
estate conveyances is not factually substantiated.
Proponents do not substantively explain the practical
objectives sought by journal thumb printing.
No evidence has ever been provided that journal
thumb printing achieves any specific public purpose.
Assertions advocating notary journal thumb
printing thus far have largely been promotional
rhetoric grounded in self-interested assumptions.
The thumb printing of notary journals, viewed
under a magnifying glass, seems substantively theatrical
and vacant.
Notaries have no lawful means to run fingerprint
matches of journal thumb prints through the FBI
national data base. Obtaining the services of a private
fingerprint expert is hugely expensive.
Therefore, arguments that the thumb print helps
prove a signer’s identity are self-obviosly void. If the document signer is subsequently found to be an
imposter, the journal thumb print might be useful
only after other primary evidence of the forgery has
been irrefutably established, rendering the journal
thumb print a mere secondary confirmation of said
evidence, at great financial cost.
The California requirement for journalized
thumb prints stems from a rise in fraudulent notarized
real estate transactions in the Los Angeles
area in the late 1970’s and early 1980’s. A pilot program
was implemented by the state
requiring notaries in Southern
California to obtain document signers
to affix their thumb prints in
their journals pertaining to real
estate conveyances only. At the
same time, more aggressive prosecutions
were effectuated, along
with tighter regulation of title companies
and mortgage brokers.
Special interests groups advocating
journal thumb prints gave themselves
all the credit for the subsequent
reduction in real estate fraud.
(The real estate industry and local
prosecutors cite other substantive
documentation indicating other
causations for reducing the incidence
of real estate fraud in their region of
California.) Nevertheless, Special interest groups
successfully persuaded the California General
Assembly to impose the journalized thumb print
requirement on real estate conveyances statewide.
In the years since, special interest groups have
been advocating all states require notaries to take
thumb prints of document signers in every notarization.
They even boldly declare to notaries that
they need to take thumb prints in their journals
even if their state laws don’t require it. The inexperienced
and the unwary are lulled
onto the thin ice of questionable
conduct.
As Americans, we have a constitutional
right to equal access to the
government services of a notary
public without having to yield our
constitutional rights to protection
against the government’s intrusion
into our privacy. As notaries, we
can make a tremendous impact on
the notary practices and laws of our
states. Let us be clear in our understanding
about taking thumb
prints in our journals and make our
concerns known. Important principles
are jeopardized by taking signer
thumb prints in notary journals.


TheNotary Notary Law Institute
P.O. Box 540787
salt Lake City, Utah 84054-0787
www.notarylaw.com
PRESORTED STANDARD
U.S. POSTAGE
PAID
SALT LAKE CITY, UT
PERMIT 571

Reply by sue_pa on 1/4/09 3:09pm
Msg #273537

I thought that's what I said (smiley face) n/m

Reply by dickb/wi on 1/4/09 3:15pm
Msg #273538

sorry sue...hadn't got to your reply yet[return smiley].... n/m

Reply by Karen/OK on 1/4/09 3:58pm
Msg #273541

Thank you dickb! So glad you posted this. n/m

Reply by dickb/wi on 1/4/09 5:36pm
Msg #273545

you are very welcome......... n/m

Reply by Susan Fischer on 1/4/09 6:11pm
Msg #273547

Second that. 5 Stars. n/m

Reply by MikeC/NY on 1/4/09 10:07pm
Msg #273560

Interesting, but...

... totally useless as legal opinion. No case law cited, doesn't even cite the location and date of the alleged incident, just an anonymous opinion that has no basis in fact. I'm always leery of any author who starts interpreting the Bill of Rights without SOMETHING to back up his claims...

Reply by JanetK_CA on 1/5/09 3:58am
Msg #273564

Re: Hypothetical Question...Long but apropriate[spelling]..

"No evidence has ever been provided that journal
thumb printing achieves any specific public purpose."

A paralegal I notarized for once told me that her office was currently dealing with a case where a man and woman had signed docs for a refi. Two years later, the man's wife found out about it and claimed she didn't sign anything, even though it was her name on the documents. [I'm guessing the woman who did sign had a fake ID.] The point was, however, that the notary did get a thumbprint and they were able to ID the imposter from that. She was being prosecuted for fraud, along with the husband. I think this is exactly the type of situation they had in mind when the requirement was passed for thumbprints for real property transactions.

I request a thumbprint for nearly all transactions, but I don't <require> a thumprint, unless it's for a document where it's specified by law that it's required. I've only had one person tell me they'd rather not and that was the end of the discussion. No problem. Most people here expect it and often ask me about it before I even mention it.

Reply by Linda_H/FL on 1/4/09 12:41pm
Msg #273518

Re: Hypothetical Question...Karen

Here's what's required in your journal, per OK SOS"

1. Date of notarial act
2. Type of notarial act performed
3. A description of the document
4. The signature and printed name and address of each person for whom a notarial act was
performed
5. A description of the form of identification provided (i.e. driver’s license or photo
identification) or a statement that the person was “personally known” to the notary
6. The location where the notarization was performed
7. The amount of fee charged, if any
8. Personal notes

Nothing about thumbprints being required - leading me to believe (MHO) you can't require it if proper ID requirements are met.

Reply by MW/VA on 1/4/09 12:57pm
Msg #273522

Re: Hypothetical Question...Karen

My thoughts exactly. If it is not a requirement of the state, but your personal requirement, how can you require it? It could be construed as UPL, as you have "added" to the state laws.

Reply by sue_pa on 1/4/09 1:30pm
Msg #273523

Why would someone not wanting to participate in your own "made up rules" make you not feel secure? I am me and I have valid id to prove it (I even look like my license photo). Signature in a journal and a thumb print are not requirements in my state and if a notary asked me for them they would be shown the door (or I would be leaving through their door) very quickly because while you feel you are doing the right thing I'd feel you were greatly overstepping the bounds set by the legislature in this state. I cannot imagine at all how it could raise a flag in anyone's eyes, except the states (which are few and far between) that require it. You state below something along the lines of wanting to be sure you are iding the proper person. How does my thumb print assure that to you? It doesn't.

Reply by CopperheadVA on 1/4/09 2:41pm
Msg #273530

My state does not require a log book or signature in the log book, however I use a log book as my record of the transaction. As I may be held personally liable if I improperly notarize, I am expressly allowed by my state of VA to refuse to notarize in any given situation. I've never had anyone refuse to sign my log book, but I might refuse to notarize if faced with that scenario.

The article that was posted the other day about the Kinko's employee who notarized an assignment of mortgage, the expert who testified stated that, "When the notarization at issue was executed in December of 1995, notary statutes across the country “did not spell out anything beyond simply the identification of document signers,” but people familiar with sound notary practices adhered to one of the two prevailing views on how to adequately identify a signer." This tells me that notaries *may* be held to a higher standard than listed in the notary handbook for their state. It enforces my desire to keep a log book of all my notarial acts, along with ID and signature of the person who I notarized for. I do not ask for a thumb print.

Reply by MikeC/NY on 1/4/09 9:44pm
Msg #273557

"This tells me that notaries *may* be held to a higher standard than listed in the notary handbook for their state."

Held to a higher standard by who?

Unless and until there's a Uniform Notary Law, the "expert's" opinion is just that - opinion. It carries no weight when it contradicts state law, and as we all know, every state law is different. A rookie trial lawyer could probably shred this guy on the witness stand...

Notaries are commissioned by their state, and as long as they meet the requirements specified by the state, they've done their job. Even in a state like mine, which only requires "satisfactory evidence" of ID without explaining what that vague term means, a notary probably can't be held to any higher standard than what a reasonable person would consider to be "satisfactory evidence".

Reply by Linda_H/FL on 1/4/09 1:37pm
Msg #273525

OK requirements are very vague on this

this is all they say about identification:

"The notary must be certain of the identity of the person requesting the service"

No means of ID outlined, no acceptable forms of ID listed...nothing....making me wonder - is an OK notary allowed the discretion to require (or request) whatever it takes to make him/her "certain" of the identity of the signer - thereby allowing the latitute to request two forms of ID...Just a thought.

Reply by Karen/OK on 1/4/09 2:51pm
Msg #273532

Re: OK requirements are very vague on this

Exactly, Linda. "Must be certain of the identity..." The print is just another way of my trying to be certain, to cover myself in case I'm ever the one in the situation as the Kinko guy.

Some of you others completely misconstrued my intent in asking for the thumb print.

Reply by MikeC/NY on 1/4/09 9:58pm
Msg #273559

Re: OK requirements are very vague on this

"The print is just another way of my trying to be certain, to cover myself in case I'm ever the one in the situation as the Kinko guy."

How is the print going to help you ID the person? If you've got a DL or some other photo document, you can visually match the photo and the signature to the person in front of you- and even that's iffy, because you're not expected to be a handwriting expert and people don't always sign things exactly the same way. Plus the photo may not be current. But at least you've got a shot at it.

What do you do with a print - what do you match it to? Reluctance or willingness to provide a print proves nothing, especially when it's not required by law. It's easy to intentionally smudge a thumbprint, rendering it useless - anyone running a con would probably be more than happy to leave a smudged print in your journal...

If you're that concerned about ID, I think you're better off (if your state allows it) to just ask for two forms of ID and forget the prints.

Reply by Marian_in_CA on 1/4/09 5:45pm
Msg #273546

Well from a CA perspective... there are times when we MUST obtain a fingerprint. As a matter of practice, a lot of CA notaries obtain thumbprints for all transactions. No, it is not required... but because the risk of fraud is so high, it often is an additional measure of protection to prove that the person who was there was actually present when they said they were. ID alone doesn't always do that.

I ask for a print and I explain why. If it is required, I tell them it is a matter of state law as it is for deeds, quitclaim deeds, deeds of trust for real property, and powers of attorney documents. If it is not one of those documents I tell them that it is not required by law, but I prefer it a fraud deterrent and a personal business practice. I assure them that my journals are kept under lock and key and that nobody can get a copy of the journal entry unless they know certain details of the transaction and request it in writing. The back of their receipt has this information, too. If they refuse when it is not required, I do not push the issue. I simply tell them no problem and I make sure that I look much closer at the ID they give me. I will pull out the UV light, too.

I have no problem if a person doesn't want to leave a print if it isn't required. I totally understand. But, in CA it has become so commonplace that many people don't even think about it. They have to give their print at the DMV. Most banks ask for prints when you cash a check (and you aren't their customer). There are numerous occupations that require fingerprinting, too. Given the nature of having something notarized, they just kind of take it for what it is.

The simple act of requesting a fingerprint as a business practice, no matter the state, is not illegal or against any kind of constitutional rights. Businesses are allowed (including notaries) to create their own rules. Requiring it, though, is obviously a different creature. Some states may not care... others might.

Obtaining a print is not to help "prove" identity, IMO. It's a matter of proof of physical presence and a way for the notary to say, this person appeared before me and to prove it left their thumbprint. A ID can be faked, so can a signature. Somebody who is trying to defraud most likely will not want to leave a print. That doesn't mean that not wanting to leave a print means one is trying to commit fraud, but it does give cause for closer verification of ID. It's an extra step in fraud prevention, it is not used for ID purposes for the act itself.

Yes, you can refuse to give a breathalyzer test, too. That doesn't make you free from the consequences. In some states that means you will go to jail or will lose your license, period. In some states, not giving the test equates to a plea of guilt. That's because of the idea of implied consent. To obtain a drivers license, you must know the DUI rules. If you drive drunk, you have essentially already given your consent to be tested for BAC simply by driving. If you don't want to give the test... don't drive. So, using that as an argument against notary journal prints doesn't work well.

In CA, the prints (for many notaries, not all) are similar to the idea of a security camera or security tags on clothing. Businesses are allowed to utilize security features to protect themselves and consumers have the right to refuse to patronize the businesses. But consumers don't usually have the right to go to a business and insist on service while demanding exemption from thinks like security tags and cameras (in public areas). Somebody who did that would likely look like a thief.

So, for a CA notary, it's a tough situation. It is a security measure that is required in some cases, but not others. It's just easier to use it all the time as a matter of practice and if someone legally refuses, let it go... but note it in the journal.

Reply by Julie/MI on 1/4/09 7:04pm
Msg #273548

Karen, don't let one story freak you out!

Karen, I have been in the business since 1983. There was no internet, there were no message boards, I was unware of any notary organizations and real estate transactions STILL happened and legally.

I know it's boring when there is no long out drama, but the reality is that statistically, the bad transactions are far and few between. And the ones that do happen, are usually done intentionally, not the fluke kinko guy.

Let YOUR fine state set the notary rules for you, don't go off the deep end like, CA and reinvent the wheel for your state, even if your intentions are noble.

We don't have to fingerprint in MI and if we met for any notary transaction and you wanted my fingerprint, I would immediately leave.

But, mark my words: CALIFORNIA WILL BE THE FIRST STATE TO REQUIRE A DNA SAMPLE; CA NOTARIES WILL HAVE TO WEAR LATEX GLOVES AND EITHER HAVE TO SWAB THE INSIDE OF THE SIGNERS CHEEK OR NEED TO BRING TWEEZERS TO GET A HAIR SAMPLE AND PUT IT IN A TEST TUBE FOR DNA SAMPLING.

Just follow YOUR state's law to the letter and you will be fine. If I hired you and I had a customer complain that you wanted a finger print, I would no longer use you and would move on to the next one. It's happened.

Reply by MW/VA on 1/4/09 7:23pm
Msg #273549

Why ask a question, hypothetical or not, if you don't want any answers except those that agree with what you're doing. According to what I'm reading here, it isn't legal for you to ask for it in your state--whether you think you're cya or not. If the signer is knowledgeable at all they should refuse a thumb print, because you don't have the authority to ask for it--period.

Reply by JanetLA on 1/4/09 7:40pm
Msg #273550

What law says that she does not have authority to ask them?

I am curious: Is there a law against it in her state? Here we are in a similar situation, nothing is required: no journal, no fingerprinting, etc. We also have much more flexibility when ID-ing people. We have to be reasonably certain that it is the person that they purport to be. We don't have to have the ID that spells out middle names, etc for example... Regarding fingerprints: if she is not required to do it, is there a law against it? There is no authority here that allows us to fingerprint people, but we are not breaking any laws that I know of by doing so. Having said that, I don't fingerprint people, but I do keep and ask people to sign my journal. There is no law requiring them to sign but I don't know that I am breaking any laws by doing so. Just curious... not trying to start an argument... Best of weeks to you all this week.

Reply by Marian_in_CA on 1/4/09 8:42pm
Msg #273552

That's not really true. There is no law that says they can't ASK for it as far as I have read. A notary can ask for it just fine. But the signer is under no obligation to give it if they don't want to. The problem comes when the notary REQUIRES it of the signer as a condition of completing the act. But even then... it may not even be illegal if the notary requests it as part of a security screening or to prove the physical presence of a signer. If there is no law PREVENTING it and, then where's the harm? The signer can always deny the request and nobody is any worse off than before. When a notary wants a print, it isn't for anything other than to prove physical presence of the signer and perhaps a backup if it is ever determined the paper ID was forged. Nobody is using these prints for running checks or anything.

Do all states require the signer to sign the journal? No, they don't. Shoot, some states don't even require a journal be kept! So, does that mean the notaries in those states are breaking the law because they want the signer to sign their journals because they don't have the express authority to ask for it?

The same goes for fingerprints. Unless that state law specifically regulates how and when fingerprints are used, then a notary is free to ASK for one as a matter of security if part of their normal business practice. They don't necessary have to REQUIRE it, but they can ask. CA requires it for some things, and a lot of notaries just ask for it on all documents out of habit because explaining the difference can be too confusing, plus having the print is proof of personal appearance if the signer is willing to give it. As I stated before, notary records in CA aren't just open records. One would need to provide the notary with very specific details of a signing in order to get a copy of a journal entry. That applies when the county clerk has the journals, too.


I may dislike a lot of things about CA... but at least its' notary laws make the most sense than most of the rest of the country.

Reply by Marian_in_CA on 1/4/09 8:53pm
Msg #273553

To add to that... I have no problem giving my thumbprint if I've already had to give my ID, address and signature. I'm far more concerned about people getting my DL# and signature than I am about a low-quality (often smudged) thumbprint. My fingerprints are just about everywhere. If I were truly that paranoid, I'd wear gloves everywhere. Shoot, just signing the journal will probably leave my fingerprints on it.

CA law requires us to record the types of ID, serial number, issue/expiration date and signature of our signers. A thumbprint isn't going to make it any riskier.

Reply by parkerc/ME on 1/4/09 9:29pm
Msg #273554

I concur with dickb lengthy posting above. My state does not allow a notary to record a fingerprint in the notary journal. And I am curious about this whole topic of asking for a fingerprint if your state does not require it. At the time of signing, it does not prove to the notary that the signer is who they say they are. What would a notary have to compare it to? As far as using it to confirm physical presence, if you wanted to commit fraud, you could provide anyone’s fingerprint. Just because someone refuses to provide a fingerprint does not mean they are committing a fraudulent act. Conversely, although asking for a fingerprint may deter fraud, just because someone does provide a fingerprint, does not also necessarily prove that person is not committing a fraudulent act. Notaries are not evidence specialists nor fingerprint analysts. The fingerprint would only come into play after the fact, if fraud was later discovered. IMHO you are taking it upon yourself to violate a person's civil rights if you ask for a fingerprint when it is not required by your state for specific transactions.

Reply by Marian_in_CA on 1/4/09 9:41pm
Msg #273556

"My state does not allow a notary to record a fingerprint in the notary journal."

No it doesn't. Nowhere in Maine's handbook is the word "fingerprint" or "thumbprint"found, or anything like unto it. It only says that it "strongly suggests" that the notary record information in a journal and gives a list of things that might be recorded in the journal. It says a journal NOT required. Nowhere does it expressly forbid the notary from recording a fingerprint. So, by saying that it doesn't allow you to do it, you're misinterpreting your own state's law.

Basically, the state doesn't address one way or another. That does mean you're not allowed to do it. Those are two different things entirely. You don't have do it. But, then... you don't have to keep a journal either. If your signer refused to sign your journal or allow you to record his information... what would you do? You're not REQUIRED to take that information, so if you do take it, your are, in essence treading on his rights in that regard.

My whole point is that there is no harm in ASKING for it unless your state expressly forbids you from doing so. The signer can always refuse to give it, just like he can refuse to sign your journal. After all, it's not required.

Reply by parkerc/ME on 1/5/09 9:35am
Msg #273573

I know my state's notary rules and recommendations and am not misinterpreting it. In our notary handbook, it says "Maine law does not allow nor does it require, as some other states do, a Notary Public to record a finger or thumb print in a notarial record book or journal. The Secretary of State strongly recommends that Notaries Public DO NOT undertake finger printing in any way until Maine law determines the need for this process as part of standard notarial practice." Again, I will comply with my state's requirements and will not ask for a fingerprint until our SOS changes it's stance. I do keep a very complete journal. Respectfully, you are probably looking at an older version of our handbook . . the new one is October 2008 and contains the above specific wording.

Reply by Marian_in_CA on 1/5/09 10:49am
Msg #273578

Thanks for clarifying that for me. You are right, I went back and the version I looked is before that date. In your case, then it is clear... there's no question about it for Maine notaries.

That's the fun with laws from state to state!

Reply by Susan Fischer on 1/4/09 9:38pm
Msg #273555

Doesn't it all boil down to the original purpose of the

Notary? To be as sure as humanly possible of the ID of a signer?

If a technology is available, and a notary avails herself to assist in the verification of personal appearance, how can it be held against that notary public for due diligence? Usually, it is permissible to meet or beat the legal standard.

While the Consitutional argument against is persuasive, the fact remains that for a notary to "require" a thumbprint as a protection for the signer as verification of physical presence may not hold up, nevertheless, the underlying fact that it WAS *this* person's thumbprint in the journal, and not *that* person's thumbprint is the salient point.

If the law states that a notary must be as certain as one can be of someone's identity, and the journal is a record of an appearance before that notary, then the "privacy" isssue is moot, since every transaction a notary completes is held in private in any case. Fingerprints included.

Since each state is responsible for the authority of its notaries, and notaries are officers of the state, it seems logical that the onus is on the notary for compliance of his stats's "certainty" of ID requirements utilizing best practices available. And, if a potential signer doesn't want to comply with voluntary fingerprinting, it should be up to the notary's descretion - that gut feeling - as to how to proceed. A note in the journal documents the attempt to a 'best practice' to verify personal appearance, for instance.

From the witness chair, a notary should be able to state with reasonable certainty, under a higher standard than that of an ordinary citizen, that the signer provided adequate proof of ID, and the notary was reasonably satisfied of identity. On the other hand, from the witness chair, the notary would also be able to physically identify the signer; "Yes, that is the person who appeared before me and signed my journal."

We go to great lengths to protect identities. We also go to relatively great lengths to verify them.

Reply by Maureen_nh on 1/4/09 10:57pm
Msg #273562

Re: Doesn't it all boil down to the original purpose of the

My state recommends but does not require a journal.
If someone refused to sign my journal, much less refuse to give a thumb print, and I refused a notarization without other cause, I could be in trouble.
My state also says that I am, at the point of notarization, the ultimate determaning authority.
This cannot be facious or unreasonable. If I demanded a thumb print or journal signature as a condition it would be both.

Reply by ReneeK_MI on 1/5/09 5:22am
Msg #273565

Take the question to the proper authority

These conversations on the forum are engaging, thought-provoking, FUN and usually pretty enlightening - but ultimately, we aren't the ones to obtain directives from.

I would put the question to your own SOS - and even that often requires some due diligence before you have an answer you can base your actions on. By taking such questions to the SOS - often, and repeatedly - we will eventually make it clear that we need concise & thorough directives detailed into the manuals or preferably, into the statutes.

Reply by sue_pa on 1/5/09 7:02am
Msg #273567

A few years ago Chase sent out a memo in all files that forbade taking of borrower's fingerprints, except in states where the law required it. Wonder why that was .... hmmmm ... I'm guessing because of "certified notary signing agents" ... not because of 'regular closers'.

If anyone, in a state other than CA or whatever other states require it, would go to their local legal/lending/banking community and ask how many times anyone has seen a finger print put in a journal, I'm betting the majority of you would receive a blank look. Does that make it the right decision? Absolutely not but, the NNA and even NR with their all purpose rather than state specific journals, are the ones that have created "the need" and even the awareness for fingerprints.

I've got 10 years on Julie's post above and I have NEVER in tens of thousands of closings seen a request for a signature, let alone a finger print.

a few years ago PA had some substantial changes in their notary laws. At a NNA seminar, they were going over what they call a journal (we call it a Register here). They were giong over signatures and fingerprints. Up went my hand and I knew the answer already. I asked if the law had changed in that regard. She started babbling about 'what's best". Up went my hand again ... wanting to know what changes the law REQUIRED, not "what's best" in another state. A lawyer from our SOS office was in front of me and she stood and said that they weren't teaching what was REQUIRED here. So, many who took those free seminars in our state, unless they did their own homework, were lead to believe signatures and fingerprints were a new requirement. I also went to a PAN seminar that year discussing the changes ... signatures and finger prints were NEVER mentioned because they're not a part of PA notarial compliance.

The older I get the more I dislike governmental interference in my personal life ...

Reply by jba/fl on 1/5/09 7:56am
Msg #273571

Amen to your last statement Sue! n/m