Posted by HisHughness on 7/26/04 11:29pm
Msg #5022

Two queries

I have two questions for those members of the board who are not quite as good looking as I am, but who are much smarter. I figure virtually every participant probably meets the second criterion, but the first ought to cut the field down to around two.

1) I am occasionally confronted with a document with a certification stating that the signatory acknowledged his signature, but did not take an oath. The notary is expected to sign off on it. What is the purpose of such a certification? Should I unswear the party when I run across such a certification? Should I have him cross his fingers behind his back? Should I just say "King's X, sign here?"

2) I sometimes close home equity loans for a company near my home. They are a PITB, but if I'm doing nothing else and there's nothing else on the horizon, they get me out of bed. Occasionally, a document (my recollection is that it is a signature/name affidavit, but I'm not 100 percent certain) will have both an acknowledgement and a jurat attached. The company insists that I execute both. All of my objections are to no avail. Any idea why the company demands this, and only on this one type of document?

Reply by PAW Notary Services on 7/26/04 11:49pm
Msg #5024

First let me say that I don't fill your bill... I am better looking too! <arogant grin - chuckle>

If a persons is acknowledging his execution of a document, he is not under oath. If he IS under oath, then, by definition, it's a jurat whereas he is swearing to the facts contained in the document. You can't do both in the same certificate. "Sworn to and acknowledged" cannot appear together in the same wording of the same certificate. "Sworn to" implies an oath which must be certificated with a jurat. "Acknowledged" is just that, an acknowledgment.

As for documents containing both certificates, I've seen them too. Not too often. Sometimes I get the same document twice in a package, once with a jurat and once with an acknowledgment. Since the jurat and acknowledgment serves two different purposes, if the author or custodian of the document wanted the signer to both acknowledge execution of the executable portions and swear to (or affirm) the factual portions, then two certificates would be required.

Compliance agreements come to mind when I think about jurats and acks and their use (or misuse). These agreements come with all flavors of certificates. Sometimes just a jurat, sometimes an acknowledgment and sometimes an invalid certificate that contains wording for both. Combination documents, such as the "Revision Agreement / Shortfall Affidavit" actually requires both types of certificates. But the legal wizards put only one certificate on the page that reads, " Acknowledged, sworn to and subscribed before me on this day by so-n-so." You just can't do that.

Reply by Sylvia_FL on 7/27/04 12:31am
Msg #5027

I agree with my pops

Just want to add though, that I am much better looking than either of you - and much much younger

Reply by HisHughness on 7/27/04 12:47pm
Msg #5052

I will accept your explanation regarding a document that carries both an acknowledgement and a jurat, but only because you claim to be better looking and I have no better explanation. I do challenge your assertion that an acknowledgement and a jurat can't accomplish the same purpose. Granted, an acknowledgement is limited. However, a jurat, I think, can implicitly encompass a de facto acknowledgement. The act of signing in front of the notary acknowledges the instant signature.

Reply by PAW Notary Services on 7/27/04 2:15pm
Msg #5063

Hugh, take your attorney hat off for a moment and think really basically about the duties of a notary public.

The acknowledgment is nothing more than the verification by the notary that the signature on the document is that of the person in their presence, that they signed the document of their own free will and it was their intention to so execute the document.

A jurat does not offer that same conditions that the signer will execute the document. Usually, there is nothing to be executed, just facts that must be sworn to. When a signer takes an oath and signs the document as attestation that they are swearing (or affirming) to the facts as presented in the document, the notary public completes the jurat signifying that the signer took an oath to the validity of the contents of the document. You cannot typically swear to an execution or action that is about to happen. You can swear that an action was completed in the past.

Personally I do not see where a jurat (or the oath) overlaps any conditions as set forth in a document that is acknowledged. However, I do agree that there are many documents in which an acknowledgment or jurat doesn't cover all the contents of the document. In those cases, two certificates would be needed. The acknowledgment to ascertain that the signer is, has, or will be executing the conditions as stated, and a jurat where the signer swears that the facts presented in the document are true and accurate.

Does this make any more sense? As my law professor once told me, think of it this way, "Acknowledgments are actions and Jurats are lie-detectors".

Reply by HisHughness on 7/27/04 3:24pm
Msg #5073

PAW argued forcefully but unconvincingly:

"The acknowledgment is nothing more than the verification by the notary that the signature on the document is that of the person in their presence, that they signed the document of their own free will and it was their intention to so execute the document."

A signature on a jurat:

1) Had to be signed in the presence of the notary, so the first attribute of an acknowledgement is present;

2) Both a document requiring acknowledgement and one requiring a jurat must be executed of a signatory's own free will, so the second attribute of an acknowledgement is present; and

3) There must be intent to execute the document requiring a jurat, otherwise the notarization is invalid, so the third attribute of an acknowledgement is present.

I think the two are analagous to oversigning a signature: One with middle initial or middle name encompasses one without middle initial or middle name; one without does not.

Reply by PAW Notary Services on 7/27/04 3:48pm
Msg #5077

HHness rebutted: "PAW argued forcefully but unconvincingly" So let me try again to convince you.

An acknowledgment is a statement from the notary that the signer executed his/her signature. Certain conditions must exist before the notary TAKES the acknowledgment.

A jurat is testimony that the signer states as fact, under oath, certain statements as expressed in the document to be true an accurate. Again, certain conditions must exist before the notary GIVES an oath. These statements may be that they executed an action, but typically are not, falling more along the lines of information of condition, such as marital status, ability to pay, etc.

An acknowledgment can be used on any document as it is only authentication of the signer. A jurat can only be used on documents in which the signer attests to the truthfulness of the document. Technically, affidavits are used as vehicles for attesting to certain facts, and typically these documents are notarized. But, to make an affidavit legal, does not require a notarial act. Notarizations do not legalize documents, only authenticate either the signer (as in an acknowledgment) or the signers oath (as in a jurat).

I believe that in CA, identity of the signer is not even required for jurats, only for acknowledgments. So John Doe can be put under oath, sign as Mickey Mouse and the notary completes the jurat which simply states that the signer swears or affirms to the accuracy and truthfulness of the document. Not any indication of "who" the signer is.

Reply by Jon on 7/27/04 4:53pm
Msg #5082

Paul, you are correct that CA law does not require ID for a jurat. However, there is current legislation that will change that law (assuming it passes).

Reply by HisHughness on 7/27/04 8:23pm
Msg #5095

PAW, struggling valiantly to retain the tattered vestiges of his notarial authority, groaned defiantly:......Aw, to heck with it, who cares what PAW has to say. The only thing anybody really cares about is my brilliant rebuttal, which is:

PPPPPfffffffffffffffftttttttttttttttttttttttttttttt...............

Reply by PAW Notary Services on 7/28/04 9:25am
Msg #5114

As HisHughness previously proclaimed: "PPPPPfffffffffffffffftttttttttttttttttttttttttttttt..............."

So, I am to assume that you evince defeat as denoted by this comment and that the verbal ping-pong has terminated? Or at least this rally. (It's okay, Hugh, I too am a Texan [Alvin], though transplanted. So your admission is not to be considered shameful in any respect.)

Reply by BrendaTX on 7/28/04 6:01pm
Msg #5134

For PAW NS

I, too, am a splendid notarial product compliments of Brazoria County - Angleton.

Reply by PAW Notary Services on 7/28/04 6:33pm
Msg #5139

Re: For PAW NS

Brenda admitted, in public, "compliments of Brazoria County - Angleton"

Now that explains a lot!! <gr&d>

Reply by Sylvia_FL on 7/28/04 6:23pm
Msg #5137

Hey, Pops , you never told me you were a Texan?? Does that make me half Texan????

Reply by derf4me on 7/28/04 5:53am
Msg #5112

PAW said: "But the legal wizards put only one certificate on the page that reads, ' Acknowledged, sworn to and subscribed before me on this day by so-n-so.' You just can't do that."

I see these all the time. So what do you do? Do you just attach an ack or a jurat? Do you call the lender each time you come across one of these to clarify what they want? I need advice on this.

Thanks in advance!

Reply by PAW Notary Services on 7/28/04 10:01am
Msg #5119

I look for keywords in the document to determine which type of certificate it is supposed to be. If I can, I will call the SS or title company for their determination, but as we know, all to often with signings at night, there's no one to consult.

Florida provides us with guidelines as to the proper keywords. If the document has "sworn", "deposes", "affiant", then a jurat would be required and the word "acknowledged" would be stricken from the certificate. If the document has the keywords "acknowledged" or "executes", or states "and did NOT take an oath", then it is probably acknowledgment. But don't guess!

Under no circumstances is the notary to use a "judgment call" or an "assumption" to determine which type of certificate is to be used. The notary must have explicit direction or instructions to make that determination. If you can't reach someone at the SS or title company for direction, you are obligated to explain the situation to the signer and have them make the determination.

Reply by Joan-OH on 7/27/04 7:15am
Msg #5041

RE: #2. I'm thinking of a signature/Name/Aka affidavit. They enter in all the names they are also known as & then sign as such. Could it be they are wanting them to "acknowledge" they did sign this form of their own free will and then "swear" they are "also know as" these other names?

I don't know if it is legal or not as I have not run into this situation and of course OHIO gives us 2 whole PDF pages of instructions.....but that's another story!

RE: #1. I have gotten these from Transcontinental. My take on it was that they were making it clear that it was not a jurat, that it was JUST an acknowledgement. I believe it also had a space where you would enter in the identifying document. Was this on an affidavit? I know in some states you have to attach a jurat, but in Ohio, we cannot make that decision.

In the end, an acknowledgement is an acknowledgement and a jurat is a jurat. I picture some attorney, late at night, in a dimly lit back office muttering to himself; "What off the wall certificate can I come up with now and while I'm at it lets come up with a couple more useless title junk docs.....hmmmmm.....Hold Harmless For The Neighbors Cat (just in case he might have a cat!!) and the purchaser could be alergic to cats, or if not, he may have company that is alergic to cats.......