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The "needless" notary assn does it again
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The "needless" notary assn does it again
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Posted by Marian_in_CA on 4/9/10 1:23am
Msg #330892

The "needless" notary assn does it again

Smile Sorry, this is long...

Even though I haven't paid for it, I'm still listed as a member and I still get their emails and such. The latest giggleworthy is this:

http://www.nationalnotary.org/bulletin/newsNotary.cfm?newsid=2515&WT.mc_id=1449&referID=A40973

As usual, it's a decent amount of good advice laced with seriously dangerous or wrong advice.

This time, they say:

"If the Notary has knowledge or a clear, reasonable suspicion that any document is going to be used for an unlawful or improper purpose — as an extreme example, a written, self-proclaimed statement declaring the signer has a legal right to commit armed robbery — the Notary should refuse to notarize the document, said NNA Vice President of Notary Affairs Charles N. Faerber. Similarly, if a Notary is in doubt about whether a requested act is lawful or proper, the Notary is justified in refusing to proceed."


On the face of it... yeah... that seems obviously logical. But it's also potentially dead wrong. IN CA, for example... we are required to oblige anyone who has a legal request to have their signature notarized on a document -- no matter the content. Obviously this kind of thing stems from people who think a notary's seal makes a document official or legal. It doesn't... we all know that.

I think the advice they're giving here can easily be misinterpreted by some notaries (meaning many of the less knowledgeable to listen to everything the NNA says) to mean that they have the right to determine legality of a document and refuse to sign on the basis.

Can you imagine what kind of issues that might cause? In CA, willfully refusing a legal request for notarization is a misdemeanor and can get your commission suspended or revoked.

We aren't responsible for the content of a document and (in CA) have only been expressly directed to refuse incomplete documents. We shouldn't be giving our opinion about the legality of a document, only the legality of our duties as it pertains to notarizing a signature on the document.

I've heard several notaries say things like, "It's illegal for me to notarize that...." Uhm... no it's generally not illegal. You refusing is illegal.

Who are we to determine if a document is illegal or improper?

Oh, sure... if I have absolute knowledge of something, I might speak up. For example, if somebody is trying to get a a marriage license because they're i jail or bedridden, and they hand me the actual application to notarize, I can tell them it's the wrong form, and why. I carry copies of the inability to appear form in a packet that comes from the County Clerk, complete with instructions of what to do. I've done so many of these (thanks to the ICE detention center down the road from me) that I carry these packets with me, and the County Clerk doesn't have an issue with it.

But if somebody hands me some kind of permission slip for some odd thing, what do I care what it says? All I care about it the signature.

And what if this document is in another language? I'm not allowed (in CA) to refuse a notarization simply because it's in another language... so how is it any different? Content is content, and as long as it is complete, who are we to advise otherwise?

I don't know why, but that article and the advice they gave sits wrong with me.

How often are we going to actually KNOW that a person has illegal intentions? And how often have we notarizes POA documents that for all we know have been used for nefarious purposes? How is that our fault? Since when are we supposed to determine the intention or use of a document? In CA, we note the nature of the document, not the intent.

Maybe it's just me, but refusing service because we think that a document is illegal or might be used for illegal purposes seems beyond the scope of our duties.

If I'm going to refuse a notarization, I better KNOW for a FACT what the person's intentions are and for a FACT that a document is illegal. For all I know, it might be a joke.

That said, if I ever had a nut-job bring me a permission slip to rob a bank... I'd notarize his signature, no problem... provided said nut-job had proper ID, etc. I'd make sure that he leaves a print, if not in ink, then somewhere on the journal or pen. Then I'd drive right over to the Sheriff station with my journal and let them take care of it.

Reply by Susan Fischer on 4/9/10 3:13am
Msg #330894

* * * * * post, Marian. Intent is not our purview.

And when those hairs on the back of our necks stand up?

Fulfill our Commissioned duties to the letter of the law, and report abnormalities. Or suspicions. Or, just in case, concerns, for the record.

Mandatory reporters report, and let the law handle it from there.

Due diligence, no?

Reply by Marian_in_CA on 4/9/10 4:49am
Msg #330899

That's EXACTLY how I feel!

You just said it in fewer words. I can't help it... I'm wordy. I'm not ashamed. Smile

But yeah... it makes no sense to me that they are telling notaries to go ahead and refuse to notarize based on their determination of whether a document is legal or not? I mean... really?

And note that the "authority" they cite about this is NOT somebody from the Sec. of State's office... but one of the NNA's VP's?



Reply by Susan Fischer on 4/9/10 5:23am
Msg #330901

I'm with you: Hmuh. That's why I love the Law.

Makes it so easy. So many bright lines in our beloved Stare Decisis.

Who said it? Notarize, Don't Analyze.

If it's iffy, and you're feelin' stiffy, go to the authorities after doing your Duty.

Document The File, so's to speak...



Reply by Sylvia_FL on 4/9/10 6:34am
Msg #330903

"needless notary assn"

Love it!!!!

BTW here in Floirda I could legally refuse to notarize if I felt uncomfortable about a particular notarization.


Reply by Grammyzoom on 4/9/10 7:21am
Msg #330904

Wow! Opened my email this morning, thought I would check out NotRot and got a present.
Loved this post!.
I used to be a member, am no longer a member and never will be a member. None of my students realize that this is a privately owned company and that it is not madatory that they belong etc etc.
Thank you ladies, and yes I know the defenders will be all over me like bed bugs in a slimy hotel.

Reply by jba/fl on 4/9/10 7:26am
Msg #330905

I don't think there are many defenders here Carol. Not me. n/m

Reply by desktopfull on 4/9/10 8:15am
Msg #330912

I agree n/m

Reply by Marian_in_CA on 4/9/10 8:46am
Msg #330919

Re: I don't think there are many defenders here Carol. Not me.

Nope, not many defender at all. I posted this mostly for the lurkers, and those that follow NNA advice to point out that while there is some level of good to them.... there's a lot of really bad advice, too, since they try to be national advisors and advice that is good for one state might be totally wrong for another.

Reply by Grammyzoom on 4/9/10 9:32am
Msg #330937

Old fashioned thinking

It seems to me that with their advice came a great big umbrella with a lot of holes in it. What will keep some people dry will soak others. Our job is to notarize signatures. To verify that we are satisfied that the person before us is who they say they are. I believe that each one of us has the responsibility to perform that duty AND to adhere to the laws of our State, and those laws may or may not agree with each other.

Unfortunately sometimes the law is not totally clear and it is then up to us to interpret what is right and what is wrong and that is where experience and intelligence plays an important role. I am not good at quoting law, I am no where near being an attorney but common sense must be the bottom line here. We need to remember exactly what role we play as notaries.

Reply by Cari on 4/9/10 7:52am
Msg #330908

I think your post is interesting but construed incorrectly..

Marian I admire and respect your contributions to this forum, as they are usually right on the money or in-line with my own, but this one, I have to say is a bit of a stretch...

In a way, you make it seem as though notaries (in CA anyway) are trained apes who BLIDNLY sign any old document, after proper ID'ing, regardless of what the document contents are. (no disrespect to CA nsa/np's)

I think the article from XYZ is interesting and correct by stating that notaries should NOT sign/notarize any document if they are in any way doubtful that by signing/notarizing the document (or obliging the requested act) may be unlawful, illegal or improper. I believe this is where 'common sense' supercedes lax or illogical notary laws.

A notary public, MUST use a 'common sense' judgment when it comes to notarizing any type of document after properly identifying the identification of the signer, and must also follow their state laws to the extent that they do not blatently supercede federal laws.

If the signer is using the document to intentionally break the law, and we can logically come to that conclusion by glazing over the document, as we are all supposed to do, then we have an obligation, if not a clear right to REFUSE to sign such documents that are OBVIOUSLY illegal.

Also, if the above scenario were real, the notary would have an obsolute right to refuse to sign on the basis that they may be subjecting themselves or contributing to illegal acts right along with the signer, potentially becoming an accidental 'accomplice' especially if that particular document were to be later given to a bank teller...

This profession is NOT just about blindly signing and stamping documents otherwise it wouldn't be such a distinguished or respected profession. (thought most on this forum do not take our profession seriously by accepting low ball fees, but that's another subject)

Most if not ALL state laws restrict convicted felons from obtaining a commission and the logical assumption is so as to prevent the above hypethical scenario from actually happening.

Notaries do take on some responsibility in every single document that is signed & notarized whether or not the document is in English or in a foreign language.

Logically, a notary can refuse to sign/notarize a document if it's written in a foreign language (they don't understand), again, on the basis that by signing/notarizing that document, they may be compromising or involuntarily infringing, subjecting themselves or may be (though involuntarily) committing illegal activities along with the owner/holder of the document.

Notaries are unbiased third parties, and thus have a fundamental duty if not right to scrutinize every single document asked to sign & notarize - its only logical - and I believe our state laws, though they should be uniform (IMO), are lax or do not specifically spell out ....DO NOT SIGN/NOTARIZE BLATANT ILLEGAL DOCUMENTS....

Notaries must use logic when it comes to notarizing documents, and not take all of our state laws so literal because as in the above scenarios, if they do in fact notarize such a document, they are in fact, legally subjecting themselves to an illegal act.

I may be stretching it here, but I would think that our legislators are giving the benefit of the doubt to us notaries to use better judgment or 'common sense' when it comes to notarizing any and all documents. And for us to outright, blindly sign and notarize documents is NOT the logical function of any notary public, of course IMO.



Reply by desktopfull on 4/9/10 8:14am
Msg #330911

Re: I think your post is interesting but construed incorrectly..

"I think the article from XYZ is interesting and correct by stating that notaries should NOT sign/notarize any document if they are in any way doubtful that by signing/notarizing the document (or obliging the requested act) may be unlawful, illegal or improper. I believe this is where 'common sense' supercedes lax or illogical notary laws."

Please tell me exactly when notary publics began notarizing documents instead of signatures. When did we become the thought police? When were we given the legal authority to determine if a document is illegal? When were we if given the authority to read a document and voice our opinion on any document? Making sure there are no blank lines is not the same thing as reading and detemining the validity of a document. IMHO, the NNA has stepped over the line again.


Reply by Cari on 4/9/10 8:29am
Msg #330915

My post was not to defend the NNA or VP who gave the

statements or the author of the article.....as I do not normally agree with most of what this organization says and am actually truly pissed that my particular state holds them as the MAIN authority as to our profession...

but in going back to that particular scenario, and Marian's post, I realized that there are some notary publics that construe their state laws a bit too literal.....

and I guess my point of after thought is as notary publics, are we to truly blindly notarize (sigs) on documents that are blatantly illegal?

I'm not trying to start a pic a fight with Marian or defend the NNA....I totally respect her and vets on this forum, but her post made me do a lot of thinking this morning....(and I haven't had my coffee yet) about this profession....




Reply by Dennis D Broadbooks on 4/9/10 8:40am
Msg #330916

"and I guess my point of after thought is as notary publics,

are we to truly blindly notarize (sigs) on documents that are blatantly illegal? "

Yes.

Reply by Linda_H/FL on 4/9/10 8:46am
Msg #330921

Really Dennis? I disagree...

I wouldn't go near it..

My take on the NNA article...

My friend has a rental property and refinances - he signs an affidavit and swears that he occupies the property as his primary residence...I know this to be false...per the article I should not notarize....and I agree...

And I am no fan of that organization so no, no defense there - just common sense...this is also the organization that said when notaries are faced with a signing by AIF we are to review the original POA to ensure they truly have the authority to sign pursuant to the POA - beyond my scope as a notary...so no, no fan of them here - but in some instances I think this article is good advice.



Reply by Marian_in_CA on 4/9/10 8:59am
Msg #330925

Re: Really Dennis? I disagree...

I actually agree with Linda here... because even though, as I posted below... our state says we aren't concerned with content of the document... we are also told:


"A notary public who knowingly and willfully with intent to defraud performs 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."


Now that's really specific about the intent of the document in a specific situation. Clearly... and in Linda's example... that's a BIG no-no, and if I knew this to be true I would refuse as well, based on this specific law. I would do that because I have law on my side to back me up.

But beyond that situation?? It's dicey.

Reply by Linda_H/FL on 4/9/10 9:08am
Msg #330927

Re: Really Dennis? I disagree...

Okay...see if this works. - I had a problem coming up with a good example - naturally for me real estate first came to mind...but..

My very close friend is in the middle of a divorce and has an affidavit to sign for court where she swears to abide by the terms of the divorce stipulations and will not take their child out of state (they will have joint custody, just for discussion's sake). She has confided in me that, immediately after the final hearing, she is leaving for XX state with the child as she doesn't ever want her ex-husband to be near their child again.

I now have knowledge of (1) false statements; and (2) illegal intent...

I would not notarize...IMO I don't believe I can notarize a signature on a document, especially requiring a jurat, if I KNOW the statements are false.

Am I overstepping? Not sure - I'm not making the determination...I KNOW the intent of the signer ...


Reply by desktopfull on 4/9/10 9:31am
Msg #330936

Re: Really Dennis? I disagree...

I would never put someone that I referred to as a friend in that position, and if someone does that's all the proof you need that they aren't your friend. That is why I don't notarize the signatures of my friends for their personal & confidential matters.

Reply by Marian_in_CA on 4/9/10 9:32am
Msg #330938

Re: Really Dennis? I disagree...

I think it depends on state guidelines.

In CA, we are told we cannot issue a certificate that we know to be false. It doesn't refer to the document itself, but our certificates. With the way CA wording goes, that's difficult to do since we aren't, in our certs, certifying to anything that we may or may not know to be true in the document itself. Our wording refers to the signature of the individual or what we did or witnessed in relation to the individual signing the document.

For example in our jurat:

"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."

The notary is issuing a certificate that the individual proved their identity and swore/affirmed whatever it was in the document. Even if I knew what they were swearing to was false, I'm not saying that... I'm just saying they did it, and they are who they say they are.

What do we do if we know or suspect they're committing perjury? Good question! That's where our individual state laws kick in. With the exception of the one law I noted above, in CA we don't have any guidance beyond the one that says we aren't concerned with the contents of the document.

If it were me (in CA), I'd probably say something like, "Okay, legally... I have to notarize your signature, but that doesn't make this a legal document and you and I both know that what you're saying isn't true. You need to know that I'm not comfortable doing this, and I would go to the police and tell them."

As a friend, I'd probably slap her upside the head (figuratively) and tell her to handle it properly and within the law.

Of course... if you think about it, how many people with TRUE illegal intent are going to complain that a notary refused them?

Reply by Susan Rindermann on 4/9/10 10:56am
Msg #330953

possible incorrect vesting...how to prove?

This issue came up with me the other day. Two signers, not married to each other, purchasing a property. One signer had vesting as married man, sole and separate property (wife signed transfer deed), the other signer had "unmarried woman". During the course of the signing someone said, "she is married". Really? When asked she said yes. Daughter in law (whose father was the other purchaser) said, "no, they are just living together". According to her they were married in Mexico in a church wedding only, therefore not a "legal" marriage. None of them seemed to really no for sure. Finally, a direct question to the signer resulted in her saying, only a church wedding, not a marriage license. I documented that and continued on with the signing. I have no way to prove if she really is married or not. Title should have determined it already. But we get stuck in between these issues sometimes. Would have been easier if no one had said anything to begin with, and I had no knowledge of the potential vesting error.

Reply by Charles_Ca on 4/9/10 1:06pm
Msg #330994

Marian I think you need to re-read your quote carefully

notary public who knowingly and willfully with intent to defraud performs 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."

The statement is that a notary who with knowledge and willingly has an intent to defraud. unless there is intent to defraud on the part of the notary the statewmt is not operative. As I read the statement it is intended against a notary who may be in collusion with the perp.



Reply by Marian_in_CA on 4/9/10 1:49pm
Msg #331003

You're right Charles....

It is a VERY specific situation, and the only one where we are specifically told (in CA) that we would be liable for that type of thing. Obviously, a Notary in cahoots is breaking all kinds of laws.

I stand by our handbook that says we not responsible for the content of a document. I just find it interesting that the NNA would say this kind of a thing -- and they're based in CA.... with a HUGE number of CA notaries in their audience. I'm just worried that a bunch of notaries are going to start playing lawyer now and refuse to notarize because they don't feel that content of a document is "proper" or "ethical" when it may not be within their duties to make the determination.

Reply by desktopfull on 4/9/10 9:11am
Msg #330930

Re: Really Dennis? I disagree...

First hand knowledge of something is not the same thing as reading a document and determining the motives of the signer and the legality of the document. We don't notarize documents, we notarize signatures.

Reply by Dennis D Broadbooks on 4/9/10 9:42am
Msg #330940

I'll Explain My Thoughts...

...& give a specific example relating to your proposed scenario. First of all as Notaries Public we're not lawyers. Never had the inclination & at 58 don't want to start now. What may on "first glance" appear to be an illegal document may very well turn out to be as "legal" as the day is long in a court of law. It ain't my job to determine the "legality" of a document...pure & simple. 90% of the time when I view a document to notarize the signer's signature I don't have a clue what's even contained therein EXCEPT the Notary certificate. If there's not a written name for the document I may glance over it to call it my own name for notary journal purposes. That's it!

Now having said that I will give my example. Just because I willingly proceed with the notarization of the signature of the document signer doesn't mean I'm blind, deaf & dumb when I'm there in the capacity of a signing agent. If I'm there on behalf of title company, et al & know there is something amiss, I WILL contact the other party involved as I'm there as their representative. My specific example occurred during the 1st year I got in this business. A father & son were the signers of a document package & they represented themselves through various documents as the owners AND occupiers of a home which just happened to be less than a mile from the office in my home. I had some suspicions even before they signed that there was something "fishy" going on, but knew it was pure supposition on my part. 5 minutes after the signing was over I realized there was a document the "owners" had failed to sign & I spent 15 minutes trying to contact them via the father's cell phone. The father didn't (or wouldn't!) pick up his phone & I made the executive decision at that point to jump in my car & go to their "home". A young lady answered the door & I asked to speak to Mr. "so & so", the owner of the home. She immediately replied that Mr "so & so" was her landlord. I said "you mean Mr. 'so & so' doesn't live here? She said "no, I do". I then asked " does Mr. 'so & so's' SON live here?" She replied "no, he's also one of the landlords". I left & the 1st phone call I made was to the title company explaining what had transpired. I never did hear the final outcome, but my guess is this loan didn't go through.

The bottom line FOR ME is while I'll NOT play the legal police when it comes to proceeding with the notarization of a signature, that doesn't mean I won't do something about it post-signing. If I'm suspicious about anything as it relates to being a representative for a title company I'll report back any & all details of what I've uncovered. General Notary work becomes more difficult to do anything about because normally I won't have any kind of fiduciary relationship with the creator of the document. If I become suspicious in that situation I'll make copious notes in my journal.

This is simply my modus operandi. I'm not encouraging anyone to follow my lead as Notary laws vary from state to state & it's YOUR business to run.

Reply by Marian_in_CA on 4/9/10 9:51am
Msg #330941

Re: I'll Explain My Thoughts...

here's another example. If you've got a nutty nut asking you notarize a signature on a document that you clearly know is ridiculous garbage --- let's say some kind of rambling letter where he declares himself president of his own country and is declaring war on the US and other intentions that would involve a visit from certain serious, dark-suited individuals, do you *really* want to piss him off?

In CA at least, provided he had ID and filled all the other requirements, I'd happily notarize his signature, make good notes in my journal and then get that information where it needed to be so they could handle it. I'm not going to get in to a confrontation with a crazy person over the content of their document. It's not worth my life.

Provided I do everything on my part to report my suspicions, and document them... I'm totally comfortable with it.

Reply by janCA on 4/9/10 9:59am
Msg #330943

I don't read the contents of any document

unless it is to search for a title or something that will refer to the document to put in my journal. I only peruse for blanks. And this is basically for general notary work as I already know the contents of the loan docs. Again, as many have said in the past: KISS.

Reply by Linda_H/FL on 4/9/10 9:54am
Msg #330942

I see your point, Dennis...

And although this outlet is available for loan signings (discoveries after the "signing" but before dropping the package) - in general notary work we don't have the luxury of 20/20 hindsight - well, we do but it's too late....

My thoughts went to more general notary work (how's THAT for a shock??!!) where we have prior knowledge of the facts - if we KNOW the statements to be false we have a duty to say no...

JMO

Reply by Dennis D Broadbooks on 4/9/10 10:18am
Msg #330947

It's the "KNOWING"...

...that becomes a problem. If we're denying the notarization of someone's signature based on OUR interpretation of what's legal or not, that is problematic. Even when we THINK we know, we don't have ALL the facts available to us. Always remember...we're NOT lawyers (unless you're Ed in GA!).

Reply by Sylvia_FL on 4/9/10 8:47am
Msg #330922

Re: My post was not to defend the NNA or VP who gave the

"and I guess my point of after thought is as notary publics, are we to truly blindly notarize (sigs) on documents that are blatantly illegal? '

Cari
I notarize signatures, not the documents, and I only scan over documents to make sure there are no blank spaces. the contents of a document are none of my business. If a document is illegal before the signatures on it are notarized, it is just as illegal after the notarization. Notarizing a signature does not change the legality of a document.


Reply by Cari on 4/9/10 12:21pm
Msg #330976

the legality of the document....is not our concern, true...

as we (or me, or most) are not attorneys, however, realistically, scenarios such as the one originally discussed in Marian's post, we as public officials have duty to the public, don't we? Perhaps this part of being a notary should be better defined IMO in our notary laws.

But would you really want to put yourself in spot light, as the notary public who notarized a signature for an individual who used the doc you notarized to committ a felony?

seriously....not me...

But are there any brave lawyers with out there with a true legal opinion on this?? I imagine if the situation involved a notary/attorney, things would be much different.

Reply by Victoria_NJ on 4/9/10 10:28am
Msg #330950

NJ NP Manual does not address the "legality" of a doc only

whether it is complete. If there are blanks, the notary must tell the signer to fill in or cross out the blanks.

However the scenario the NNA came up with, is rather like getting a note from your mother to rob a bank. A better analogy should have been used.

Are you breaking the law by IDing and acknowledging someone's signature that says "I am going to rob a bank? " Only if you don't report the intent, along with the name of the person you just ID'ed. IMHO

Reply by Marian_in_CA on 4/9/10 8:43am
Msg #330918

Re: I think your post is interesting but construed incorrectly..

I think this points out exactly what I'm referring to with the article when I said is was a mix of good advice and potentially really bad advice. As Sylvia pointed out, in Florida, they can refuse if they are uncomfortable.

In California... not so much. We are told explicitly that we can refuse based on being incomplete. We can also refuse if the signer lacks proper ID or isn't able to actually acknowledge or swear/affirm to the contents of the document.

This NNA article specifically says that notaries should refuse to notarize if they the feel a document is illegal OR improper -- that they should not only follow law, but ethics -- to determine if a request is "valid" or not. That's the trouble... who is to say something is "improper"?

And as far as foreign languages go, in CA... we HAVE to notarize documents in foreign languages if they appear complete, meaning no blank lines. And this is just for CA notaries, but if that's the case, then how would we ever be responsible for the content of the document?

In fact, our handbook is VERY specific about this:

"A notary public can notarize a signature on a document in a foreign language with which
the notary public is not familiar, since a notary public’s function only relates to the signature
and not the contents of the document." (CA notary handbook, 2010, page 18)

Like I said... the NNA's advice is terrible because it suggests to notaries on a national level that they should be taking on a role that they may or may not legally be allowed to do.

I stand by what I said... in these cases, if the request to notarize a signature is legal... it's best to notarize and be on your way.... followed by a swift report to the authorities if you suspect that the individual has illegal intent.


Here's a good example where I could see this happening. In CA, there's this famous Prop 8 thing - same sex marriages are out by a constitutional vote of the people. In other words -- illegal.

Now, let's say I'm called to the hospital, as I often am, to notarize a signature ofr an Inability to Appear document. The person signing the form just happens to be the same sex as the person they want to marry. Now, I know that their application will be rejected by the clerk because under current state law, it's illegal. In some ways, I would say what they were doing was "improper" given that they likely know it will be rejected. However... it could be that they are making a political statement or something else.

The point is though... it's NONE of my business. I know what they are doing is illegal, but they still have a complete document, and their request to notarize the signature of the individual who can't appear at the clerk's office is, in fact, a legal request because they have proper ID, etc.

If I were to refuse to notarize the signature because I knew what they were doing was illegal... I could have my commission suspended or revoked, and I could be charged with a misdemeanor for failing to perform my duties.

In a case like that, I wouldn't report them to the authorities. I would just let them be and let the County Clerk handle it.

But if I ever suspect serious criminal activity like armed robbery... I'd go straight to the authorities and report it. After all, I'd have a nice, public record of the event as evidence. If the authorities don't follow-up, it's not my fault.

My long winded point being that this is a another classic, current, example how how the NNA gives mixed signals to a national audience and how many notaries will listen to exactly what they say, simply because they're the NNA. We see posts here all the time that start with, "The NNA told me...."

I will defend the NNA when I think they do something right... and I have before. But more and more, they're giving out innacurate and potentially dangerous advice.

Reply by John/CT on 4/9/10 9:10am
Msg #330929

At the end of the day, state specific "Prohibited Acts".

The Connecticut Notary Handbook, Section 4.17, says, "A notary is prohibited from performing any official act with the intent to deceive or defraud and it is the responsibility of the notary to refuse to perform any such act." So, for me, NNA is correct ... but not necessarily for someone in a different state.

Reply by desktopfull on 4/9/10 9:18am
Msg #330932

Re: At the end of the day, state specific "Prohibited Acts".

But that still infers first hand knowledge doesn't it, or do your laws require you to interpret the legality of the document?

Reply by Marian_in_CA on 4/9/10 9:42am
Msg #330939

Re: At the end of the day, state specific "Prohibited Acts".

Many of the responses here seem to prove exactly what I meant. What the NNA is saying isn't just about personal knowledge, but also taking it upon themselves to determine if a document is legal or improper, even for complete strangers. That's the problem.

Desktop gets what I'm trying to impart. It's not just about personal knowledge of a situation, it's more than that.

Reply by JanetK_CA on 4/9/10 5:36pm
Msg #331039

Couldn't agree more.

How many times have we seen new notaries come here with questions about how to notarize a specific document only to be told to "notarize, don't analyze" or something similar? A little bit of information can be a dangerous thing. And when presented with any document to notarize, there are very likely many, many related bits of info that we have no way of knowing about. Even if someone makes a comment about something that would seem to be inappropriate, we can't know if they are misinformed or if there are other extenuating circumstances.

I agree that this statement by the NNA could likely cause another spate of people over-analyzing and getting too involved in the content of the document. Having said that, I agree that there may be differing state laws that have to be considered, as evidenced by all the different posts here. But for most of us, Jan said it right: K.I.S.S!


Reply by Shoshana/AZ on 4/9/10 9:18am
Msg #330931

Talk about fraud....

This is a true story. My "FedEx guy" asked me about a loan. I couldn't do it for him at the time. However, he was able to get it done by Chase. I asked him about it the other day. He confided in me that he didn't tell Chase, but the loan was for $15,000 more than what the sellers really wanted for the condo. He said that he came out of the deal with an extra $15,000 cash! He seemed proud of himself.

Reply by desktopfull on 4/9/10 9:25am
Msg #330935

Re: Talk about fraud....

That's a bunch of state and federal laws broken. Also, if Chase does find out they can demand payment in full immediately because of the fraud and the feds can send him to jail. He must think his freedom is only worth $15,000.00. But how would a notary know this if the party involved doesn't inform them of the fraud, we aren't responsible for the contents of a document.

Reply by Shoshana/AZ on 4/9/10 10:05am
Msg #330945

Re: Talk about fraud....

Exactly. Notary would not know. Probably no realtors involved since it was the unit he was already renting.

Reply by Victoria_NJ on 4/9/10 10:32am
Msg #330951

Re: Talk about fraud....

Usually both the lender and the title agency will ask for a copy of the sales contract. The property probably appraised higher than expected and Chase happily sold him a loan for the higher amount.

If they lied on the sales price to all parties involved, then that is a different matter.

Reply by BobbiCT on 4/9/10 9:23am
Msg #330934

Something I've states for MANY years, including at NNA....

I respect everyone's personal opinion and Personal decision as to what to do under circumstances specific to him/her. Two statements I've made for MANY years, including when working with the NP Code of PR issued by the NNA:

1. I'd rather be sued for not notarizing a document than for performing a notarization I was unsure of.

2. I like you a lot, but not enough to go to jail for you. (Response when asked by friends or family to notarize without personal appearance. In addition to a state fine, CT can impose a jail sentence on the notary for certain improper notarizations.)

Please feel free to use these statements at any time Smile



Reply by Rani Sampson on 4/9/10 11:35am
Msg #330968

Re: I won't go to jail for you

That's a nice way to let someone know they're asking too much. Well said, Bobbi!

And I agree - It's difficult to sue someone for not notarizing (unless you make it a practice of not notarizing documents for a protected class: race, religion, age, family status, etc. )

Reply by Marian_in_CA on 4/9/10 2:00pm
Msg #331006

Re: I won't go to jail for you

This only applies to CA... cut CA notaries don't just have to worry about being sued. Refusing an otherwise legal request is actually a CRIME, and the notary could be convicted and lose his/her commission just for refusing to notarize.

It all depends on each state and if that state gives the notary an option to object based on the content. CA doesn't... in fact, CA says notaries are NOT concerned with content. The exception, of course, is when the notary themselves is knowingly, willing colluding on a fraudulent deed, as mentioned above.

Reply by Robert/FL on 4/9/10 11:24am
Msg #330960

Your obligations as an NSA are much different

than when you are acting as "just a notary".

The Fla. manual says that a notary should refuse to notarize, even though a specific prohibition may not appear in our statutes, if "the notary knows *or suspects* that the transaction is illegal, false, or deceptive".

So, at least in Florida, even my *suspecting* that the transaction is deceptive is enough grounds for me to refuse to notarize. Other states may not give its notaries that type of flexibility, but there are other ways to avoid the notarization... say that you don't have your seal with you; say that it is after your usual office hours. I would rather refuse the notarization to begin with, than proceed with it and then take an hour out of my day to go report it to a sheriff's office, so the sheriff's office can turn around and do absolutely nothing, saying that I am "just a pompous notary who thinks he is really important".

Yes, we notarize signatures and not documents, but IMO we have a duty to the state to prevent this type of fraud.

Reply by Robert/FL on 4/9/10 11:25am
Msg #330961

Forgot to cite - page 55 of the Florida manual n/m

Reply by Cari on 4/9/10 12:45pm
Msg #330984

Internet Unofficial Research on Notary Publics.....

Notary Public - Further Readings....

A public official whose main powers include administering oaths and attesting to signatures, both important and effective ways to minimize FRAUD in legal documents.

The origin of notaries public can be traced to ancient Rome, where a notarius was held in high regard as legal counsel. During that era only the few people who knew how to write were qualified to serve as a notarius. A notarius wrote legal documents, including contracts and wills, and retained them for safekeeping. A small fee was charged for those services, a tradition that continued to modern times. (and some SS/TC still use that same small fee to this day...anyway...)

As colonists settled in the New World, most transactions that required an oath or signature attestation were handled in the courts. During that period the few notaries who existed were appointed or elected in a manner similar to the election or appointment of judges. However, as trade with Europe began, the demand for notaries increased because of the large number of bills of exchange that needed to be witnessed. The authority to appoint notaries was transferred to the states, where the SECRETARY OF STATE (or another nonjudicial office) usually acted as the appointer.

In 1983 the Commission on Uniform State Laws passed the Uniform Law on Notarial Acts (14 U.L.A. 125), which covered nearly all aspects of the office of notary public, from the definition of duties to appointment policies.

As of the early 2000s, most states use this model law as a basis for their own notary public statutes. These laws vary from state to state, and the amount of power that a state gives to notaries can depend on its history. For example, Louisiana was a French possession and used a civil code rather than a COMMON LAW. It gives its notaries broad powers—almost equal to those of a JUSTICE OF THE PEACE. In Louisiana notaries' powers include making "inventories, appraisements, and partitions; … all contracts and instruments of writing; [and holding] family meetings and meetings of creditors …" (La. Rev. Stat. Ann. § 35:2 [1996]).

California also gives notaries additional powers, allowing them to "demand acceptance and payment of foreign and inland bills of exchange, or promissory notes, to protest them for nonacceptance and nonpayment" (Cal. Gov't. Code § 8205 [West 1997]).

In some cases the notary responsible for a transaction has an invalid commission because of a technicality. If the notary already witnessed and completed the transaction before becoming aware of the problem, the transaction is still considered valid.

Notaries public have two main duties that remain consistent from state to state. Perhaps the most important duty of a notary public is attesting to signatures on documents. This duty is important because it aids in minimizing fraud; signature attestation must be done with the notary and the signatory in a face-to-face setting.

The process of notarizing a signature is simple. The person who wants his or her signature notarized must present sufficient evidence to prove his or her identity and then sign the necessary document with the notary as a witness to the signing. The notary completes the process by stamping or sealing, dating, and signing the document. This face-to-face procedure helps ensure the authenticity of the signature.

A notary public may also administer oaths in depositions or other situations. Even though this type of oath may not take place in court, the witness can still be held accountable and be punished for perjury.

In Ohio a notary can also hold an affiant in CONTEMPT if he or she is a reluctant witness. In the U.S. Supreme Court case of Bevan v. Krieger, 289 U.S. 459, 53 S. Ct. 661, 77 L. Ed. 1316 (1933), a notary public held a witness in contempt because he refused to comply with the requirements of the subpoena he was served. The court ruled that the notary was acting within his powers when he held the witness in contempt.

To become a notary, a candidate must complete several steps. A candidate must fill out an application and submit it to the appropriate government agency, usually the respective state's department of the secretary of state or the U.S. DEPARTMENT OF STATE. As part of the application procedure, the candidate must also take an oath of office and submit a bond. The purpose of the bond is to offer a small amount of monetary insurance in case the notary is sued. On average, notarial bonds are less than $5,000. If a notary is sued for more money than the amount of the bond, the notary is still personally liable for the difference between the bond and the sum awarded to the plaintiff.

Once an application is approved and the notary is commissioned, the notary must register in the county in which he or she resides and pay a registration fee. The commission itself has a time limit, which can range from two to ten years, with an average limit of four years. To renew the commission, the notary must repeat the application process.

Most states require that a notary be at least 18 years old and be able to read and write English. However, the latter requirement may change in the future because of the increasing number of transactions that take place in languages other than English. Some states require potential notaries to pass an exam as part of the application process. Others may require a notary to keep a detailed journal of the transactions he or she officiates.

Until 1984 many states required that a notary be a U.S. citizen or a resident of the state in which he or she would serve as a notary, or both. However, in Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984), the U.S. Supreme Court ruled that requiring a notary to be a U.S. citizen was unconstitutional under the Fourteenth Amendment's EQUAL PROTECTION CLAUSE. Therefore, even though the plaintiff in the case was actually a Mexican native and longtime resident alien, it was unconstitutional to deny him a notarial commission simply because he was not a U.S. citizen. Despite this ruling many states have kept the U.S. citizenship requirement in their statutes.

Another challenge to the procedure for becoming a notary occurred in the case of Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961). In this case, an atheist objected to Maryland's notary public oath, which required him to acknowledge a belief in God. When his notary commission was denied, he sued. The case went to the U.S. Supreme Court, which ruled that, under both the Maryland Constitution and the U.S. Constitution, it was "repugnant" for an oath to require a belief in God.

Notaries can only be held liable for actions they take while performing the notary function. For example, although notaries are responsible for attesting to the validity of a signature, they are not responsible for the validity of the document. It is not considered MALPRACTICE for a notary to attest to a signature on a document that he or she knows is invalid. (INTERESTING!)

A notary must "act as a reasonably prudent notary would act in the same situation." In an action against a notary, the BURDEN OF PROOF is on the plaintiff to show that the notary acted negligently. If the plaintiff meets this burden, the notary can be held personally liable for damages to all parties involved, including third parties.


Reply by BrendaTx on 4/9/10 5:51pm
Msg #331044

Marian's correct.

The needless association is wrong, in my opinion, and it was a great discussion which I enjoyed.

Don't need to re-hash. I just feel that Marian's outlined everything well and her logic is sound.

===OMG===
Has anyone else realized that it's FrIdAy??

Whoo hoo!


 
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