Posted by Anonymous on 4/12/06 10:44pm
Msg #113195

Letter

I have a question and I hope someone out there can help me. A friend came to me with a letter that invites someone from another country into her home, here in California and she wants me to notorize it. It doesn't have any wording on it because she typed it up herself. My question is do I attach an aknowledgement or a jurat? By the way I'm here in California.

Reply by Korey Humphreys on 4/12/06 10:51pm
Msg #113196

You can't choose. Does the document contain wording such as; swear, affirm, penalties of perjury, etc.? If so, then it should include a jurat.

However, if you decide in CA, I believe it is the unauthorized practice of law. Just rely on your friend to make the decision.

Just FYI, my laws (Massachusetts) allows a duly experienced and/or qualified notary from making decisions when it comes to documents and/or notarial wording. It's a shame that every State doesn't adopt this. Most things are obvious on what type of wording is required.

Reply by Mung/CA on 4/12/06 10:56pm
Msg #113197

I explain what a jurat is (swear or affirm to.........signed

in my presence, etc., etc.) and what an ack is and let them decide.

Reply by laura padilla on 4/12/06 11:01pm
Msg #113200

Re: I explain what a jurat is (swear or affirm to.........signed

you're right, thank you.

Reply by laura padilla on 4/12/06 11:01pm
Msg #113199

Thank you, that was very helpful.

Reply by Tina_MA on 4/13/06 7:32am
Msg #113239

>>>Just FYI, my laws (Massachusetts) allows a duly experienced and/or qualified notary from making decisions when it comes to documents and/or notarial wording. It's a shame that every State doesn't adopt this. Most things are obvious on what type of wording is required.<<<

The following is from the Governor's Revised Executive Order N. 455 (04-04). This *does not* state that Massachusetts' notaries can choose the wording. It states that you must use wording that is *substantially* like the following.

(d) A notary shall take the acknowledgment of the signature or mark of persons acknowledging for themselves or in any representative capacity by using substantially the following form:

On this ____ day of ___________, 20__, before me, the undersigned notary public, personally appeared ________________________ (name of document signer), proved to me through satisfactory evidence of identification, which were _______________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he) (she) signed it voluntarily for its stated purpose.

(as partner for ____________, a partnership)
(as ____________ for ______________, a corporation)
(as attorney in fact for ________________, the principal)
(as ___________ for _______________, (a) (the) _________________)

_________________ (official signature and seal of notary)
(e) A notary shall use a jurat certificate in substantially the following form in notarizing a signature or mark on an affidavit or other sworn or affirmed written declaration:

On this ____ day of ___________, 20__, before me, the undersigned notary public, personally appeared ________________________ (name of document signer), proved to me through satisfactory evidence of identification, which were _______________________, to be the person who signed the preceding or attached document in my presence, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of (his) (her) knowledge and belief.

_________________ (official signature and seal of notary)

(f) A notary shall witness a signature in substantially the following form in notarizing a signature or mark to confirm that it was affixed in the notary's presence without administration of an oath or affirmation:

On this ____ day of ___________, 20__, before me, the undersigned notary public, personally appeared ________________________ (name of document signer), proved to me through satisfactory evidence of identification, which were _______________________, to be the person whose name is signed on the preceding or attached document in my presence.

_________________ (official signature and seal of notary)

(g) A notary shall certify a copy by using substantially the following form:

On this ____ day of ___________, 20__, I certify that the (preceding) (following) (attached) document is a true, exact, complete, and unaltered copy made by me of __________________ (description of the document), presented to me by ______________________.

_________________ (official signature and seal of notary)

Reply by Korey Humphreys on 4/13/06 8:29am
Msg #113248

Tina --- Read and interpret this.....

Section 9: Prohibition Against the Unauthorized Practice of Law.

(a) A non-attorney notary public shall not assist a non-attorney in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act, rendering legal advice, or otherwise engage in the practice of law.

>>>>>> (b) This section does not preclude a notary public who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field. <<<<<<<

(c) A notary public who is not an attorney licensed to practice law in Massachusetts, or who is not directly supervised by an attorney, shall not conduct a real estate closing and shall not act as a real estate closing agent. A notary public who is employed by a lender may notarize a document in conjunction with the closing of his or her employer's real estate loans

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My attorney has interpreted this law for me. Therefore given that I (and you) are duly qualified and trained, we may therefore select, draft, and/or complete a certificate or document related to our industry. The attorney says that this INCLUDES notary certificates.

I am fully competent enough to determine what notarial certificates to use. Most of the wording is common sense.

Reply by Korey Humphreys on 4/13/06 8:35am
Msg #113251

Hold on a second..... just re-read your message.....

You're correct. We cannot choose the words used on the notary certificates. My messages above were in reference to deciding whether or not I, as a duly qualified and trained individual, can determine whether or not to use a Jurat, signature witness, and/or an acknowledgment certificate.

You're correct on the proper wording. But remember Tina, the wording you have in your message is not mandatory. We, the notaries, must use substantially the same form. Also, remember the following:


Section 8: Underlying Document.

(c) Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification set forth in this Executive Order should not be the basis of refusal to accept the document for filing, recordation, registration, or acceptance by a third party.

Reply by Gerry_VT on 4/13/06 12:37pm
Msg #113353

Another interpretation

I'm posting to this MA thread, even though I'm a VT notary, because one of the rules might apply to me, and my state law is silent on the issue.

Consider this rule which Korey presented:
>>>>>> (b) This section does not preclude a notary public who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field. <<<<<<<

Let me give a scenario where the concept would apply to me, even though I'm not an MA notary:
I go to a signing for a purchase that is held in the home to be sold. I notice that when the refrigerator goes on, the lights get brighter. As a licensed electrical engineer, I recognize this as a symptom of an fault in the house's electrical grounding system. This is a life-threatening danger.

I therefore inform the buyer and seller of the danger, even though the advise might result in the closing not occuring. My justification is that lawyers are not the only ones qualified to advise on real estate matters; some other professionals are too. The fact that a person is an notary public does not prevent the person from practicing another profession.

Whether legal training that does not lead to a government-recognized status (lawyer, CPA, IRS enrolled agent, patent agent) can allow a person to give advise about whether a form should be acknowledged or sworn to seems doubtful to me; I wouldn't do it.

Reply by Tina_MA on 4/13/06 12:59pm
Msg #113362

Re: Another interpretation

>>>Whether legal training that does not lead to a government-recognized status (lawyer, CPA, IRS enrolled agent, patent agent) can allow a person to give advise about whether a form should be acknowledged or sworn to seems doubtful to me; I wouldn't do it.<<<

I agree. It is a very slippery slope, that can be interpreted in a wide variety of ways.

But I guarantee that if something ever went to court, it would be interpreted in the narrowest way possible, leaving the notary hanging in the wind.

Also, E&O insurance would not cover any type of fallout from acting in this manner.

Reply by Korey Humphreys on 4/13/06 1:15pm
Msg #113368

Re: Another interpretation

I see what you're saying Tina, however, I'd rather take the advice of my attorney. I (and even you) as a paralegal working as an agent of an attorney wouldn't be "hanging in the wind".

E&O insurance will cover it because I would be acting within the law if I were to use my better judgment and choose between an acknowledgment, signature witness, copy certification, jurat, etc.

Besides, I briefly researched this topic using Lexis and I can't find any case that has ever been reported in Massachusetts where a notary got in trouble for mixing up a jurat and/or an acknowledgment. According to my attorney, this is why most affidavits contain the words "signed under the penalties of perjury". This is a common phrase because if the notary were to mess up (or another officer before whom the affidavit is taken) it really wouldn't matter because the affiant signed under penalties of perjury.