I ran across this Latin phrase on the signatory page of a Note from Louisiana. Specifically, the wording was
'NE VARIETUR' for identification with an Act of Mortgage passed before me this____day of ____________.
It was unclear whether I needed to just sign or sign and stamp, so I did a Google search which took me down an interesting road. Seems that when you find this language on a Note from Louisiana, you CANNOT sign this document unless you are a Louisiana Notary, which in my case, since I'm not, it killed the deal. NAA provided me with this complete answer, and I want to share it:
Answer Alert: 05-2012
May a non-Louisiana Notary sign a “ne varietur” clause at the end of a promissory note?
Background
A promissory note is a written document in which a borrower promises to repay loan proceeds to a
lender according to specified terms. To secure the note, a mortgage or deed of trust is signed,
pledging the property as collateral. While in most states the note is not notarized, the security
instrument (e.g., deed of trust or mortgage) is notarized. However, in Louisiana, Notaries have the
unique authority to pass an act of mortgage and to “paraph” (affix an official signature to) the
promissory note, thus identifying the note with the mortgage securing the note and certifying to the
note’s genuineness. The paraphing of the note by the Louisiana Notary is considered a notarial act.
“Ne varietur” is a Latin phrase meaning “it must not be altered.” See the attached sample promissory
note with the “ne varietur” clause at the bottom.
The Answer
No. Completion of a “ne varietur” statement may only be completed by a Louisiana Notary
Public and perhaps the very few civil law Notaries in the states of Alabama and Florida. Civil law
Notaries in Alabama and Florida are specially-appointed attorneys who perform notarial acts under
the civil law, like Louisiana and Puerto Rico Notaries, and Notaries in most of the rest of the world.
The official Louisiana Notary Public Examination Study Guide cites Louisiana Civil Code
Article 3325 as the background for this practice: “The notary must paraph a note or other written
obligation that is presented with a mortgage, privilege or other encumbrance.” It further points to a
court case providing the legal opinion that a Notary and his or her surety may be held liable to
anyone who is injured through the Notary’s abrogation or improper discharge of his or her notarial
function of paraphing a note (Louisiana Notary Public Examination Official Study Guide, page 318).
Certifying to the genuineness of a promissory note or the joining of a particular note and security
instrument is not an act that a common law Notary in any other U.S. state or jurisdiction may
perform. It entails the exercise of significant legal knowledge and discretion that a common law
Notary does not possess. And, given that courts in Louisiana have found a Notary liable for damages
related to paraphing a note, Notaries outside of Louisiana should be especially mindful of the legal
exposure they may have if they proceed.
Furthermore, in many states, a Notary may not use the Notary’s title except to render notarial
services. In California, this means that a Notary may only use his or her title to perform an authorized
notarial act (e.g., an acknowledgment or jurat), and cannot use it to perform an unauthorized act
If a non-Louisiana Notary is requested to complete the “ne varietur” clause on a mortgage note,
what should he or she do? The answer is not as simple as recommending that the Notary replace it
with a jurat or acknowledgment, because both attest to acts made by a signer (acknowledging a
signature on or swearing to the truthfulness of statements in a document). The paraph specifically
requires the Notary to make a certification tying the mortgage and security instrument together. An
acknowledgment or jurat certificate would not appear to be an acceptable alternative. Therefore, if
asked to notarize a “ne varietur” clause, the Notary or Notary Signing Agent should refuse and
inform the signer that law in the Notary’s state does not allow him or her to perform this function that
is specific to Notaries in Louisiana.
(This Answer Alert was concurred on by Bill Anderson, Vice President, Best Practices and
Legislation, and by Steven Bastian, Director, Product Development.) |
