Posted by CTS10866 on 12/5/07 7:00pm
Msg #224532

Michigan Code: § 600.2102 case regarding authentication

274 Mich. App. 49; 731 N.W.2d 442; 2007 Mich. App. LEXIS 120

December 12, 2006, Submitted
January 25, 2007, Decided

SUBSEQUENT HISTORY: [***1]

Vacated by, in part, Special Panel Convened at Kaczynski v. Anderson, 274 Mich. App. 801, 2007 Mich. App. LEXIS 1135 (2007)

Remanded by Kaczynski v. Anderson, 2007 Mich. App. LEXIS 1466 (Mich. Ct. App., June 1, 2007)

DISPOSITION: Affirmed.

CASE SUMMARY / PROCEDURAL POSTURE:

Plaintiff, decedent's personal representative, challenged the order of the Grand Traverse Circuit Court, Michigan, granting summary judgment in favor of defendant, physician, dismissing the representative's medical malpractice action.

OVERVIEW:

The representative provided an affidavit of merit, originating in Florida, bearing the signature and seal of a Florida notary public. Accompanying the affidavit was a certificate from Florida's Department of State attesting to that notary's status and good standing. The issue presented was whether the out-of-state affidavit of merit need only be signed by a notary public or whether it must be accompanied by court certification setting forth the notary's authority. Although the representative's expert's affidavit was certified by the Florida Department of State, the affidavit did not satisfy the requirement that a sister state's notary public's signature be certified by the clerk of any court of record in the county where such affidavit would be taken, under the seal of said court, as provided by MCL 600.2102. The appellate court found that since the statute of limitations expired before the representative came into compliance by filing an affidavit with the proper court certification, caselaw required that the trial court grant summary disposition in favor of the physician.

OUTCOME: The order was affirmed.

Michigan Code: § 600.2102. Affidavit taken in other state or country; authentication.

Sec. 2102. In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows:

(1) It must be certified by the consul general, deputy consul general, or some consul or deputy consul of the United States resident in such foreign country, to have been taken and subscribed before him, specifying the time and place where taken and have the consular seal attached; or

(2) It must be certified by some judge of a court having a seal to have been taken and subscribed before him, specifying the time and place where taken;

(3) The genuineness of the signature of such judge, the existence of the court and the fact that such judge is a member thereof, must be certified by the clerk of the court under the seal thereof;

(4) If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the governor of this state to take affidavits therein, or before any notary public or justice of the peace authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.

Reply by jba/fl on 12/5/07 8:02pm
Msg #224544

Meaning? Are you saying that Florida Notary seal, or any

notary seal, is not acceptable in MI unless certified by clerk of court? Isn't that overkill? Since the governor appoints us, our seal gives date of commission expiration and serial number, I just don't get it. That is like MI not accepting anything from out of state expect courts.

Reply by Carolyn Tann-Starr on 12/5/07 8:32pm
Msg #224547

Hi JBA/FL: Signature required to be certified by Court Clerk

Although the representative's expert's affidavit was certified by the Florida Department of State, the affidavit did NOT satisfy the receiving state's requirement that a sister state's notary public's signature be certified by the CLERK of any court of record in the county where such affidavit would be taken, under the seal of said court (as provided by MCL 600.2102).

The post was to introduce the fact ( to newbies or remind some veterans ) that when we do notary work that crosses state lines we should always attempt to check the rules of BOTH states before we attach what we "believe to be the documents required" instead of what the law demands.

Since this person's mistake was litigated and a matter of public record, I thought it would be interesting to open a dialog on the subject and possibly save someone else from making the same error.

Thanks for your inquiry. I hope I answered your question to your satisfaction. Regards, Carolyn.

Reply by PAW on 12/5/07 8:45pm
Msg #224548

Re: Hi JBA/FL: Signature required to be certified by Court C

Carolyn,

It is not up to the notary to know the laws and requirements of other states. The burden of correctness rests squarely on the shoulders of the document signer and custodian. In this case, the affiant needed to get his ducks in a row. Not the notary.

Many states use a county system for notary enforcement and accountability, thus the oft requirement that a Clerk of the Court certify certain legal actions. However, Florida's notaries public are appointed and accountable to the State, Department of State and the Office of the Governor, thus a disparity between the way things are normally done in Florida and what was required by another state.

Reply by CTS10866 on 12/5/07 10:52pm
Msg #224568

Re: Hi PAW

Very true.

NY state executive law, public officer law and the NYC administrative code requires NY notaries to conform to all statutory requirements when performing duties as "constitutional officers." We, like all other commissioned notaries, must act responsibly and excercise reasonable care. If notaries fail to do so, they are all subject to the possibility of a civil lawsuit to recover financial damages caused by a notary's error or ommission.

We all know we do not select a form for a customer because selecting the form would be giving an opinion of law and fall under the crime of UPL. We also do not determine the type of notarial act to perform.

However, an attorney who hires a paralegal/notary, law secretary/notary and or an investigator/notary would expect a vendor/member of his/her team to take reasonable care in processing an assignment, which would include checking the documents for completeness and errors. Whether in the same office, or working across state lines (as independent contractors telecommuting on a case), public officer laws require we conform to the statutory requirements of our home state (and other jurisdictions if it materially affects how we process a document). If we are unsure about an item we can decline to notarize it. If we are unsure, but notarize it anyway, we may open ourselves up to the possible liability of being negligent or failing to perform our duties as public servants.

For example, NY law does not require I own an embosser. However, this item is required by some states on certain types of documents and for processing international documents if sending notarized documents abroad (e.g. requirements of international treaties).

Regarding international documents subject to treaties, have you ever worked a “One Parent – Minor Child” boarding denial situation? Very interesting, very emotional and very quick money. It commands a premium because time is of the essence. Plenty of people are unaware of the fact that many airlines require the notarized permission of the child’s off location parent in order to board the plane. This requirement is to help protect children from “kidnapping” by a parent (e.g. custody dispute) or other individual. Because a lot of the airlines are very serious about this issue they will not let someone board without the required affidavit.

I live minutes from LaG and JFK, so when people need emergency notarized affidavits from the non-flying parents granting written permission, they are in a time crisis and often they complain that the notification/requirement for this document was never communicated when the trip was booked, (e.g. electronic ticket purchase at a web site). If they followed the usual check in procedures of arriving early, they find out during pre-boading proceedures and promptly begin to make the arrangements to contract for an emergency signing. This happens only if there is still the possibility of the other parent(s) meeting the Notary in time to sign a "Non Flying Spouse / Guardian Permission Affidavit for Minor Child to Travel" form. Stranded vacationers will offer serious money for a notary to respond to their rescue and process this one page document. You don't have to go to the airport, you only need to meet the spouse on their way there. If you do go to the airport, they will also pay for your travel fee on top of the emergency signing fee. (It's better to meet near, but not in the actual airline because if they miss their flight, they may grow irritated and not want to pay. Have the airline fax the form to your office, have the spouse come to the office, or meet someway along the route, etc. )

Countries abroad require the notary seal of the document to be embossed, not simply stamped. If I stamp it with my commission info only, they will not be able to board a plane to return home with the child because of the missing embossed seal. It would be considered a questionable document not conforming to international law.

The easiest way to get into this field is to make a flyer and hand deliver them with plenty of business cards to every single ticket counter desk in your targeted airport. They will call you in a heartbeat just to keep the customer from having a meltdown/panic attack.

Google Hague Convention Nations regarding the Hague Convention Abolishing the Requirement of Legalization (Authentication) for Foreign Public Documents. The treaty simplifies authentication through the attachment of a single certificate of capacity (an apostille). Like MI, NY state requires an authenticating certificate from the county CLERK before issuing an apostille. The $10 fee for the apostille is payable to the NY Dept of State and is issued from the Dept of State. However, the authenticating certificate (a seperate doc) comes from the county clerk's office.

I hope this post is somewhat useful for someone. Regards, C.

Reply by WDMD on 12/6/07 5:48am
Msg #224587

Re: Hi PAW

"It commands a premium because time is of the essence."................... "Stranded vacationers will offer serious money for a notary to respond to their rescue and process this one page document......."they will also pay for your travel fee on top of the emergency signing fee"........

N.Y. allows you to charge extra for emergency notarizations? Interesting.

Reply by CTS10866 on 12/6/07 6:59am
Msg #224592

Re: Hi WDMD

The signature is always $2 by NY law. It's the (a) courier fee to respond to a fixed point to take possession of the emergency package, (b) faxing the package back to the airline ticket counter (c) to confirm it is enroute and (d) so the passengers can continue to be processed (e.g. computer updates, check in process, etc) while waiting for the original. Some airlines will allow passengers to board the plane with the knowledge that the original, if late, can be forwarded/filed the same (or next day) as required. Regards, C.

Reply by Carolyn Tann-Starr on 12/6/07 7:16am
Msg #224596

Request Utility Bill, Birth Certificate and Marriage Lic

I usually require a government picture ID, utility bill, birth certificate and (if available) marriage lic to attempt to ensure that the person meeting me is the actual significant other and parent of the child or children. If in the field I write the account/certificate/license numbers in my journal. If in the office, I also copy everything including the processed affidavit. Get as much information from the person at the airport over the phone before the responding spouse meeting, instructing them to inform their spouse that these documents are required to verify the family relationship. If you copy them, hold the package for what they claim to be the duration of the trip, then shred the documents a few days after the date ( reasonable care and indemnification issues). Since I also take fingerprints in my journal, if there is an issue, I can at least state I did everything to mitigate the risk and verify the identities of the participants. Always write the name of the airline employee and ID# with all available phone #s on each copy, in case there is an issue (in addition to the original contact information on the participants of the event).

Reply by BrendaTx on 12/6/07 7:25am
Msg #224597

Re: Request Utility Bill, Birth Certificate and Marriage Lic

**I usually require a government picture ID, utility bill, birth certificate and (if available) marriage lic to attempt to ensure that the person meeting me is the actual significant other and parent of the child or children.**

While that's very good to want to make sure, I feel that it's not the notary's place to require more than the ID of the signer.

Reply by CTS10866 on 12/6/07 7:39am
Msg #224600

Hi Brenda. I agree, however

since a child or children are involved, I will not do this without some sort of proof that the person appearing is a person of authority in that child's life. A parent concerned about their child will not hesitate to prove that they are indeed the parent of the kid (and is not involved in a possible criminal conspiracy to remove a child from another custodial parent). Divorce is a very emotional and stressful situation where desperate people can sometimes be pushed to resort to desperate measures. In the case of Internationals marrying Americans, there is a volume of FBI data to substantiate the pattern and pratice of removing children from the USA out of the reach of the American parent awarded custody. There are also rising incidents of men stating they want to go home to see their parents, but once there, refusing to allow the family to return to America. TBN, Discovery Channel, Court TV and Channel 13 each had great documetaries about American women being trapped in the Middle East, loosing all rights because their husbands "owned" them and the children (according to foreign law). We can all operate as we deem fit. This is how I operate. This is what makes me feel comfortable.

Reply by BrendaTx on 12/6/07 8:27am
Msg #224608

Re: Hi Brenda. I agree, however

**We can all operate as we deem fit. This is how I operate. This is what makes me feel comfortable. **

CTS10866 - The why part I understand, I don't know that my SoS would agree with you. They call that practicing law, overstepping one's boundaries, etc.

When acting as a notary we don't notarize statements, we notarize the signatures...that's the Texas way, anyhow. If a suspicious situation is detected it would be law enforcement's duty to take our statement and act on it.

What do you do if you don't believe a person is the rightful parent of the child? Have you stopped a child from boarding? What if you were wrong? What would happen to the plans of the parents/children because you were acting as some type of law enforcement which kept them from boarding their flight rather than letting they guys with the badge at the airport make that determination once you had notarized the person's signature?

Not arguing...just telling you I think you're way would be frowned upon by the secretary of state here in Texas.

(I'm operating under the assumption you are working airport appointments. When I took my minor step-children out of the country I had to provide their birth certificates and a statement from both of their parents/notarized. Customs did the rest and decided whether or not I could leave the country with them.)

Reply by BrendaTx on 12/6/07 8:29am
Msg #224610

correction - you're way = your way

And, also, I don't know if it was "customs" or immigration authorities who decided if I could take my stepsons out of the country.

Reply by CTS10866 on 12/6/07 8:54am
Msg #224613

Re: correction - you're way = your way

Thanks for the typo correction . I never decide who stays or leaves. I only process the paperwork. If the spouse doesn't make the meeting in time, then everybody stays by default. If the spouse doesn't bring the required documents, the spouse can find another airport notary. The parent is informed before they leave home what to bring. If there is a problem, we are in phone contact and we can resolve the problem. If we cannot resolve the problem, they are free to find another notary provider before walking out of their front door, and I go back to doing what ever it was I was doing before the call. It's a simple procedure if you make operating rules and stick with them. I work with attorneys all the time and my best friend, who is an attorney, goes over my paperwork when ever I have any questions and lives right across the street if there is an issue. I can not speak for another state, but what I have stated here has already been vetted by members of the NY state bar and is okay to do.

Reply by BrendaTx on 12/6/07 8:57am
Msg #224616

I work for attorneys also.

That's why I have the very clear understanding of my position when acting as a mobile notary.

Reply by CTS10866 on 12/6/07 8:45am
Msg #224612

Re: Hi Brenda. I agree, however

Hi Brenda. Asking for proof of ID and proof of a relational tie is not practicing law, it is conforming to airport policy regarding the affidavit. The airline is relying on a public official to confirm that (a) the parent or gaurdian appeared before the notary and (b) provided some sort of confirmation that they are who they say they are. A driver's license tells me "you are you," but it does not convey the fact that "you are possibly a mom with a daughter named "xyz" living at "abc." Notarizing the affidavit signature after receiving the required proof is part of due dilligence. When the airline faxes over the affidavit and are willing to allow people to board on a fax back, pending filing of the original soon to come, they are not going to want to hear you did not, as a vendor providing a service to one of their customers on their premesis, conform to the required level of proof. It is no different than bringing your marriage lic, child's birth certificate and utility bill to personnel to get a newborn on a benefits package. Personnel is requiring you conform to the level of proof that (a) you are married, (b) there is a child that exsists that has a blood tie to you as a dependent and (c) that you live where you say you live. That in and of itself it not practicing law. It's processing paperwork.

Reply by BrendaTx on 12/6/07 8:57am
Msg #224615

Re: Hi Brenda. I agree, however

I respect your position on this. Perhaps others will offer an opinion. It's interesting.

I still disagree that the notary's position gives them authority to require this kind of proof for a simple notarization.

Due dilligence only applies to the notary's identification of the signer and the other things listed specifically in our rules.

Reply by Terri Garner on 12/6/07 10:35am
Msg #224645

Re: Hi Brenda. I agree, however

In California, we notarize signatures, we have no responsibility for the validity of the information in the document. Nor does law give us the responsibility to absolutely prove that the child named in said document is the child of the person appearing before us.

CA states that we are to ID the signer of the document. Now then, if we know for a FACT that the information in the document is false, then we are not to notarize the signature thereon.

CA Law supports that I only require and ask for ID, nothing else. There would be no way I would maintain copies of ANYTHING besides my journal. If I did, I would be required to provide my privacy policies, and so on. Besides, I don't have room to keep those kinds of records, nor am I required to.

Now then, if I suspect something is going on, I could possibly refuse to perform, however, I better be prepared to defend that position. If there was some doubt, perform the notarization, make a notation in your journal and make a phone call, let the authorities do the investigating and/or detaining.

Terri
Lancaster, CA

Reply by SharonMN on 12/6/07 4:37pm
Msg #224735

I agree with Brenda and Terri

Your job is to check ID and notarize the signature of the person before you. If the airport people want more security, THEY can require the document to include a statement such as "I swear I am the parent of Bob Jones" and have the signer swear to it before you, or the airport can request copies of supporting documentation such as the child's birth certificate for THEIR file.

As a public official, you should comply with any reasonable request for notarization services that meets the requirements for notarization. Notaries should not make up their own extra requirements because they feel the requirements the responsible party (be it the airport, the lender, etc.) are not stringent enough.

Reply by CTS10866 on 12/6/07 7:27am
Msg #224598

Battery powered hand held scanner for laptop (field work):

Wireless faxes through a laptop can help if you are in a pinch.
May I suggest the DocuPen R700:

Hardware Specs

2mb Flash memory
Dual roller guiding system
Twain interface
USB 2.0
Lithium Ion rechargeable battery
Size: 8.5 x .5"
Weight: 20 oz

Package Contents:

DocuPen portable scanner
USB cable
CDRom installation disks
Instruction Manual
Leather case

The DocuPen R700 is a 8.5 inch long by .5 inch tall plastic bar with one rubber covered button on top.

Reply by WDMD on 12/6/07 8:15am
Msg #224604

Re: Hi WDMD

Ah, I misunderstood your post. The premium they are paying is for other services not notarizations. Sorry.

Reply by CTS10866 on 12/6/07 8:33am
Msg #224611

Re: Hi WDMD. I should have stated it better.

I also apologize for not making it more clear. Looking forward to more comments from the community. I would love to hear from other people who have done these to see what their operational procedures are. The manhattan notaries hipped me to this line of work in September of this year. They charge an average of $100 for the service (if there is a two hour window) and $175 (or more) if this needs to be done in less than an hour. They are motocycle messengers who became notaries when they realized there was so many opportunities to make an extra $$$ (instead of delivering the documents and leaving the customer to find a notary, only to call them to pick up the docs and deliver them somewhere else). We usually get together twice a month for lunch and hang out in the hotel lounges adjacent to the airport enjoying free wireless services and HDTV. When we hang out, we always let our contacts know we are in the area so we can zip over on short notice, especially during the holiday season. Since my friends ride motocycles, unlike me, they are rarely ever stuck in traffic and do way more of this than I (smile). That is also another reason I probably try not to enter the airport unless I really have to. Getting out can be a bummer. If I enter LaG I usually have the person meet me by the taxi stand next to the internal gas station by the food loading bays adjacent to the main terminal. (Free parking!!!) Plus, you can escape airport traffic faily easy by using the Marine Air Terminal service road to Ditmar's Ave or cut across the overpass to enter the Grand Central Parkway going in either direct (East/West).

Reply by Gerry_VT on 12/6/07 11:56pm
Msg #224828

Re: Hi JBA/FL: Signature required to be certified by Court Clerk

I have not had any cause to have a notarized document authenticated so far, but I have read the directions for my state and states where I've attended university. Apparently, anyone in possession of the document can have it authenticated; it need not be done by the notary. Thus, there is no cause to think that a notary who does not arrange for an authentication has neglected his/her duty, because if it is necessary, the signer or the recipient could get it done him/herself.

I believe the NNA has been following this case (I'm not a member, nor do I plan to become one). The last I saw, the notary signature had been accepted.

Reply by Mia on 12/6/07 9:24am
Msg #224618

Thank you for posting. I have been watching this case for a couple of years (this has been
in the court system from around the being of 2005 or end of 2004).
The determination by the Judge was based on a 1879 Notary Law.
It "appears" that MI does not recognize certain notarized documents under
the "Uniform Recognition of Acknowledgments Act (URAA)".

Reply by CTS10866 on 12/6/07 1:56pm
Msg #224694

Hi Mia. You're very welcome. I plan on watching this too. n/m