Posted by sigtogo/OR on 8/23/12 3:53pm
Msg #431709

Title says NO Notary has ever asked that! what do you do?

recently I have been receiving docs from two different title companies with name affidavit, among others, that at the top says "borrower first being duly sworn" then notarial acknowledgement at bottom saying "who was not given an oath."

In Oregon, as many states, we cannot tell people if Ack or Jurat should be used. However, when the top tells me to administer an oath and the ack specifically says I didn't, I feel I am in a bit of a pickle.

Rather than risk title being upset with my making changes I discussed with title a simple solution, albiet not perfect, of my crosing out "not" so it says an oath was given.
First company was fine, no problem. second company did agree but were less than pleased with my call and said NOONE has ever brought this up before or made changes.
In other words, I was making the proverbial mountain out of a molehill.

Opinions please? would you change? leave as is? add separate Jurat?
thank you!!!!

Reply by KODI/CA on 8/23/12 4:22pm
Msg #431712

Being in California and since California is so rigid on the wording of both the Jurat and Acknowledgement, I would go with the "borrower first being duly sworn" and line out all of it saying "see attached" and attach a California Jurat and swear in the client. JHMO

Reply by sigtogo/OR on 8/23/12 4:36pm
Msg #431714

does CA law allow you to choose the notarial cert?

I kind of figured yousr would be the response from CA and I have wondered how you get around UPL when deciding to add a cert. wouldn't it be nice if notarial law were the same throughout the US? would make life easier for us?

Reply by Linda_H/FL on 8/23/12 5:06pm
Msg #431716

Re: does CA law allow you to choose the notarial cert?

"borrower first being duly sworn"

Those words right there indicate the requirement of an oath and, therefore, a jurat. So it would not be UPL to attach one since, by the simple nature of their own document, that's what's required.

A shame no notary has ever brought that up to them before....sheeples.

JMO

Reply by sigtogo/OR on 8/23/12 11:53pm
Msg #431778

good point on UPL. sheeples? lol n/m

Reply by VT_Syrup on 8/23/12 5:18pm
Msg #431717

Re: does CA law allow you to choose the notarial cert?

I'm pretty flexible, since my state has no required wording, but by the same token, since my state is flexible, the document as a whole has to be considered in deciding what act I am performing. I could write an affidavit in the form "At Orange County Vermont, John Doe, first being duly sworn, states blah blah blah /s/ John Doe"

"Before me, VermontSyrup, Vermont Notary Public, /s/ VermontSyrup 23 August 2012"

So since I could put the nature of the notarial act at the top instead of near my signature, any statement at the top of a document about being duly sworn could be considered to be my statement, not the signer's statement. A later statement that I didn't administer an oath to the signer seems like a contradiction.

Reply by MikeC/TX on 8/23/12 5:24pm
Msg #431719

I used to see these all the time from FL TCs and lenders. The actual notarial certificate is what made the decision for me. If there was a properly worded notarial acknowledgment at the end of the document, then I would not administer an oath - I don't care what the document says, they're asking for an acknowledgment. If it was still unclear from the wording of the certificate, I would call and ask which they wanted, because I was going to have to attach a loose certificate. I don't recall one time when they asked for a jurat, but that wasn't a decision I would make on my own.

I don't believe that you're the first notary to ever question it - it's confusing, and we're not allowed by law in any state (with the possible exception of LA) to decide or suggest which form to use. You did the right thing by questioning it.

Reply by HisHughness on 8/23/12 6:39pm
Msg #431724

You are not using your judgment to determine whether a jurat or acknowledgment is needed; the preamble to the document says the signer was sworn. When I encounter those, I make the notarial certification conform with the preamble of the document.

Reply by BrendaTx on 8/23/12 6:58pm
Msg #431727

Don't change it...

Is it possible that this document will ever encounter the frowning face of a clerk in the county recorder's office? If so, I suspect that he or she would be frowning because there was a jurat attached, but no acknowledgment.

Have the party(ies) both acknowledge and swear. Note it in your journal. You could also ask title if you can add a jurat to the document BEFORE the acknowledgment. Just don't take away their acknowledgment--it is the ticket to recording a document. It is the mother of all notary certificates in title offices.

The document on which I see what you describe is a homestead-related affidavit. It would not hurt to ask if you may add the jurat, too. That's what we (in a law office) did to satisfy both the swearing and the future possibility of recording.

Rhode Island is having a pile of trouble right now because the wrong certificate is on many mechanic liens. They needed an acknowledgment to file them, but they also needed to be sworn to....this is basically the kind of situation that is of concern to you.

http://www.zlien.com/blog/acknowledgment-error-invalidates-rhode-island-mechanics-lien/

Reply by VT_Syrup on 8/23/12 7:02pm
Msg #431728

Do land record clerk's really need an acknowledgement?

I realize it will vary by state, but do land record clerk's really need an acknowledgement to record a document, or is that just a myth that circulates among these clerks, kind of like the "less not more" myth circulates among notaries?

Reply by BrendaTx on 8/23/12 7:31pm
Msg #431731

That is the point, VT. They want it. What's

more sensible...

-to conform and get it recorded quickly, or

-sue the clerk and let the courts decide?

Texas law says, as you will see in this opinion, that a document must be acknowledged...but, the AG says that the clerk doesn't have to be the police...if it is not recorded with the proper notary cert., the AG/courts can decide.

Texas Attorney General Opinion
https://www.oag.state.tx.us/opinions/opinions/47mattox/op/1988/htm/jm0883.htm

Reply by VT_Syrup on 8/23/12 8:51pm
Msg #431749

Re: That is the point, VT. They want it. What's

You answered about 1/55 or so of my question. In Texas it's no myth; documents must be acknowledged to be recorded in the land records office. So if the document also needs an oath then the document will have to be both sworn and acknowledged. So that just leaves the rest of the states and territories to wonder about. By the way, I've never had a problem with the concept of administering an oath for, and taking an acknowledgement for, the same document. Just so long as the language doesn't say the signer took an oath and didn't take an oath.

Reply by sigtogo/OR on 8/23/12 11:48pm
Msg #431776

took an oath and didn't take an oath-difinitely the issue n/m

Reply by MikeC/TX on 8/23/12 7:47pm
Msg #431737

Re: Don't change it...

I remember that under NY law, a document could require both a jurat and an acknowledgment, but I don't think these are what they were talking about.

It's just a poorly worded document that got stuck in someone's computer and keeps getting used without the knowledge of those who are using it. Whenever I questioned it, the response was always "No, just do an acknowledgment."

Since the OP was not talking about mechanic's liens, I'm not sure that the Rhode Island problem is relevant. We can only provide the notary service requested, and if we're not sure what that is, we need to ask some questions...

Reply by BrendaTx on 8/23/12 8:16pm
Msg #431742

Re: Don't change it...

Of course no mechanic's liens are involved. It is the wording of the document ("swear") and the fact that an acknowledgment was attached that is relevant to the concerns of the OP.

The rest that I wrote is to shed light on the logic ( or, lack thereof ) of the problem. If one has not worked inside of the buildings that send these documents to us, it makes no sense.

Reply by MW/VA on 8/23/12 7:27pm
Msg #431729

Yes, I've seen it many times, and no, I didn't ask.

Since the notarial certificate is an ack, I gather that's why they say "did not take an oath".
I've either circled "did" or struck out "not" a number of times, with no repercussions.

Reply by Jessica Ward on 8/23/12 7:49pm
Msg #431738

I've asked one that one many times!

Not sure which company this is, but I'm surprised that they said that.

I also get pages where they include both forms, and I call and ask "which one do you want?" because I'm not allowed to guess. I get varying answers which all seem to me to indicate they don't have any idea... ranging from "use the first one" or "do them both."

Typically I ask if they want an acknowledgement or jurat, and substitute WA's language which I carry on a stack of blank forms.

Reply by Martin Renteria on 8/23/12 9:07pm
Msg #431750

Re: I've asked one that one many times!

We first saw this wording 10 or so yrs ago by the now-defunct Transcontinental Title in Florida. We've seen that wording ONLY on their junk title docs. It's now been "adopted" by very few other title companies, usually out of Florida, as valid wording (probably off-shoots of Transcon Title). We figured back then it was Florida wording so we just left it be. Since those junk docs are not recorded, we just fill in the appropriate blanks, sign, seal, and their happy.

Reply by sigtogo/OR on 8/23/12 11:46pm
Msg #431775

thanks, likely the gals irritation came from her not

really understanding what I was asking now that I have had a moment to think about it.

Reply by sigtogo/OR on 8/23/12 11:52pm
Msg #431777

Thanks everyone, great comments. it was out of Florida :)

you are such a great resource!!