Posted by Dennis D Broadbooks on 3/9/07 8:06pm
Msg #179274

How Many States...

...out there in Notaryland will allow you to place your notary stamp on a form such as I've detailed below? To provide some clarity to this, I'm scheduled to be giving an oath to an individual this coming Wednesday who will be giving a deposition over the phone. We're to call a certain 800# at the designated time, I'm to give the oath to the deponent & then I'm free to leave. The form (shown below) given to me by the legal entity purchasing my services is to be signed ONLY BY ME after the oath ceremony has taken place & testifies to the fact I've performed my services as directed. I'm to send the original of this document with my notary seal on it to this company. I'll give MY answer as to what the State of MO says after I've received some responses.

STATE OF MISSOURI:

COUNTY OF ST LOUIS:


I, Dennis D. Broadbooks, Notary Public in and for the State of Missouri, hereby certify that on the 14th day of March, 2007, I administered an oath to John J. Doe, for the purpose of giving sworn testimony, via the telephone, in a lawsuit styled John J. Doe vs. XYZ Company, et al in Cause No. F-282,493-DG in the 432nd District Court, Podunk County, Any State.

SWORN TO AND SUBSCRIBED BY ME ON THIS THE 14th day of March, 2007.

____________________________________
Notary Public in and for the
State of Missouri

Reply by PAW on 3/9/07 8:22pm
Msg #179278

Re: How Many States... Florida, for one

The suggested form from our manual is:

STATE OF FLORIDA
COUNTY OF ____________

In my capacity as a Notary Public of the State of Florida, I certify that on the _____ day of
_________________, 20___, at (time) a.m./p.m., (name of deponent) personally appeared before me and took an oath (or affirmation) for the purpose of giving testimony in the matter:___________________________________________________.

Identification:
Personally Known__________
or Produced Identification__________
Type of Identification Produced__________

Notary Signature
PRINT, TYPE OR STAMP NAME OF NOTARY
(SEAL)

The Florida notary is not authorized to take the deposition, but is authorized to administer the oath.

Although depositions may be taken over the telephone, the deponent must be in the physical presence of the notary public, or other official authorized to administer oaths, at the time the oath or affirmation is given. There is no exception to the presence requirement, even if the attorneys for both parties stipulate otherwise. (See Attorney General Opinion, No. 92-95, December 23, 1992.)

(See Florida Governor's Manual for Notaries, 2001, pg. 13-14)

Reply by John_NorCal on 3/9/07 8:47pm
Msg #179288

Re: How Many States... Florida, for one

******I certify that on the _____ day of
_________________, 20___, at (time) a.m./p.m., (name of deponent) personally appeared before me and took an oath *****

What am I missing here? How can you certify that a deponent PERSONALLY appeared before you when all you did was talk to the "supposed" deponent on the telephone for the purpose of giving them an oath? It could be any body giving that oath, maybe even O.J. Simpson when the person you really want Jerry Do Good!
I wouldn't touch that with a 10 ft pole.

Reply by BrendaTx on 3/9/07 8:48pm
Msg #179289

Re: How Many States... Florida, for one

John, Dennis will travel to the witness to swear him in for a telephone testimony.

Reply by John_NorCal on 3/9/07 8:55pm
Msg #179291

Sorry, my bad. I stand corrected...

after re-reading the post. Long day with too many numbers in front of me! :}

Reply by PAW on 3/9/07 8:55pm
Msg #179292

Re: How Many States... Florida, for one

Because the deponent must appear before a notary to be sworn in. The deposition can be taken over the phone, meaning that the recording and/or attorneys asking the questions may be on the other end of the phone. Phone depositions are extremely common.

Reply by Marlene/USNA on 3/10/07 7:53am
Msg #179327

Re: PA does it this way

Notice, though, that it's a certificate by the notary, not a jurat. PA jurats are used by the notary for administering oaths/affirmations to the customer.

PA also allows depositions by phone. Someone authorized to administer oaths does so on the other end - the notary taking the deposition doesn't have to be the one who administers the oath.

Reply by jojo_MN on 3/9/07 8:23pm
Msg #179279

If you are not notarizing it, I don't see any problem with it. IMHO

Reply by jojo_MN on 3/9/07 8:25pm
Msg #179281

PAW's example is acceptable, though. IMHO n/m

Reply by BrendaTx on 3/9/07 8:46pm
Msg #179286

I think he will be required to place his stamp on it.

Reply by jojo_MN on 3/9/07 8:56pm
Msg #179293

According to the way it is written in the original post, he is witnessing himself if he puts his stamp on it. The way PAW's post states it, he would be witnessing the person taking the deposition and verifying that person's identity. Please correct me if I'm interpreting it wrong.

Reply by Marlene/USNA on 3/10/07 7:56am
Msg #179328

I agree with you, jojo. . .

. . .except that the notary (in the original post) would not be *witnessing* the person, he is merely saying he gave the person an oath.

*Witnessing* to me means witnessing him sign something.

Reply by PAW on 3/9/07 9:03pm
Msg #179294

There's nothing to notarize. The underlying question is whether or not a notary public is authorized to administer oaths for the purpose of giving a deposition. Many states allow a notary public to administer the oath for that purpose, and complete a certificate stating that the oath was given. It is not a notarization of a signature.

In Florida, notaries are authorized to perform functions other than notarizing signatures. Those authorized duties are:

Solemnizing marriages
Certifying VINs
Certifying copies of some documents
Certify the contents of a safe-deposit box
Administering oaths for depositions

Reply by BrendaTx on 3/9/07 8:45pm
Msg #179285

Dennis, I have done this. Good money, easy job. My uneducated opinion follows:

My go-to-gal at the SoS said that if this came from a lawyer (legal source) and as a part of the court proceedings then this was how it needed to be presented and she would not argue it at all. This is a new era of telephone hearings and it's becoming quite popular by trial judges. There is probably law buried in the rules of civil procedure in Mo. like it is in Texas which will allow for this and if I were you I'd run it past the SoS and do all you can to embrace the new opportunity there. It's necessary for these people to be sworn in and who can do it besides a notary or an officer of the court?? It is going to become a more necessary service.

Again, this is a needed service and I personally wouldn't / won't shy away from it. There's nothing inherently wrong with it if a judge is basically blessing this act by allowing it in his court.

As an aside, since I work in an environment where the standard notarial forms are legally* changed to fit situations in complex closings and legal procedings I know that there's more to notarial language than what appears in our handbook to guide the regular public notary who is not working for an attorney and who must know the basics of notarial law. These types of documents (like this one you have) are constructed by attorneys and are qualified by law to assemble words and phrases to work for certain verifications and certifications of certain things which the regular public notary never has need to know.

Having served as a notary public under the lawyer's guidance for many years in the past and in the present has given me a wider view of things notaries do and more than what most notaries see here--those which generally appears in loan packages and which the public notary should stick to doing without legal assistance.

A lawyer is who constructs these more unusual instruments--not a layperson-- and as my SoS said, we need to be respectful that they are the ones who need this service and know how they need the notary to perform in certain circumstances. This would not include the obvious wrong things like back dating or not ID'ing a person or not having them appear in front of you, of course.

I won't argue this with hairsplitters but I am telling you that IMHO you are being directed by a lawyer or court reporter acting as an officer of the court and who is putting together a certification method to swear in a witness.

I wrote this hastily as my mom and I are having a great visit, but I did not want you to miss an opportunity which I think you are lucky to have been chosen for. I say go for it. If you want visit with me by phone about this I will be available Sunday evening.



*legally - Meaning that it's buried in law or not seen as outside the law. There are things which notaries do in Texas which are outside the scope of a notary doing without having a lawyer to interpret the way something must be done--ie, lawfully issuing subpoenas, for one. Another is identifying certain capacities...and because of the complexity...well, that's why I think it is not in our handbooks.

There's lots I don't know about but do know that when one deviates from regular verbiage it constantly goes in front of trial courts and the judges do NOT send out bailiff's to arrest the notary who has placed their stamp on an unusual certificate.

By the way folks...I might have made all this up so don't depend on anything I say.

Sorry so long...

Reply by Dennis D Broadbooks on 3/9/07 9:37pm
Msg #179296

I've Already Accepted the Assignment...

...& will be performing the oath this coming Wednesday. And yes I've called our SOS Notary Commissions office for clarification. What initially threw me was the wording of the form which didn't include a place for the deponent to sign. Our MO Notary handbook doesn't address this situation at all so we're somewhat left to our own devices unless the SOS office provides us with some direction. Even the head of our Notary Commissions division ran it by one of their most experienced attorneys before giving me a call back with the OK to place my notary seal on the document. BTW, the entity which has hired me for this just happens to be from Texas.

Reply by Marlene/USNA on 3/10/07 8:22am
Msg #179331

Re: I've Already Accepted the Assignment...

Dennis, can you substitute a written oath that the deponent will sign and you will notarize according to the notary laws of MO? Since the deponent is in MO, you have to abide by MO notary law, not TX.

According to what I read, MO notaries can't certify anything but copies (right?).

The way I read the original form, you're certifying that you gave an oath to the customer, but the jurat says you're swearing you did. If I were you, I would cross out "certify" and write "swear" instead, then sign it. But I wouldn't apply my seal to my own signature in this case.

If it's your seal they're after, they'll have to get it according to MO law.

Reply by Dennis D Broadbooks on 3/10/07 8:53am
Msg #179342

The Entity Hiring Me...

...in this situation doesn't want the wording changed at all. If you've read my other postings on this you'll see I've run this by our SOS for their review & they don't have an issue with it as it's currently written. If they don't, I don't.

Reply by Marlene/USNA on 3/10/07 9:43am
Msg #179363

Re: The Entity Hiring Me...

OK. But get it from them in writing, this could resurface long after they're out of office.

Reply by Dennis D Broadbooks on 3/10/07 11:52am
Msg #179381

I've Taken the Verification...

...part of my due diligence as far as I'm going to. While it may be prudent to get it from our SOS in writing, I'm accepting their verbal confirmation at this point. I'm comfortable with what I've done so far in this situation & willing to live with the consequences if we're all dead wrong. My gut tells me I'm on firm ground.

Reply by PAW on 3/10/07 9:13am
Msg #179353

Re: I've Already Accepted the Assignment...

Missouri statutes read:

492.010. Every court and judge, justice and clerk thereof, notaries public, certified court reporters and certified shorthand reporters, shall respectively have power to administer oaths and affirmations to witnesses and others concerning any thing or proceeding pending* before them, respectively, and to administer oaths and take affidavits and depositions within their respective jurisdictions, in all cases where oaths and affirmations are required by law to be taken.

(RSMo 1939 § 1884, A.L. 1988 S.B. 425)

Prior revisions: 1929 § 1720; 1919 § 5407; 1909 § 6351

which therefore allows the Notary Public to administer the oath to the deponent for the purposes of the deposition. The court will typically require "proof" that the oath was given. Missouri statutes further states, concerning the "Certificate of officer taking depositions":

492.350. To every deposition or examination, taken by virtue of sections 492.080 to 492.400 shall be appended the certificate of the person or officer by or before whom the same shall be taken, showing that the deposition or examination was reduced to writing in his presence, and was subscribed and sworn to by the witnesses, and the place at which, and the days, and within the hours, when the same was taken.

(RSMo 1939 § 1938)

Prior revisions: 1929 § 1774; 1919 § 5461; 1909 § 6405

This sworn statement is the proof that the deponent was placed under oath. The statement is made by the person taking the deposition, not the notary, not the deponent.

So the question boils down to whether or not a notary public can "stamp" his/her statement that an oath was given to the deponent, thus certifying the fact. I have found nothing in the Missouri statutes that specifically authorizes the statement to be certified, but, also find nothing to the contrary. A search of court records for depositions may show that historically such certifications were used and thus are allowed by de facto, and therefore setting a precedent.

----- ----- -----

The preceding is a personal opinion of the author and is not to be construed as legal advice nor a legal opinion.

Reply by Marlene/USNA on 3/10/07 9:54am
Msg #179366

Good research, PAW

I often forget that other laws cover notarial acts. The statutes you cited talk about the deponent having been administered an oath, not the notary.

I still think, though, that "I certify" isn't covered by the "sworn to and subscribed by me" over the notary's signature. "I swear" or affirm would be or else an oath has to be administered to the notary by some other qualified officer.

If TX doesn't care and MO doesn't care and Dennis has no qualms about signing it, then I'm just quibbling over words.

Reply by PAW on 3/10/07 11:03am
Msg #179376

Yes, we're quibbling, but ...

The "Sworn to and subscribed by me" above the notaries signature is simply a statement that the notary is swearing to the fact that an oath was administered. I've seen that here with depositions as well. But, the underlying question remains whether or not an official seal can be placed on the notary's affidavit, as an official notarial act, not that the notary is notarizing their own signature.

Reply by Dennis D Broadbooks on 3/10/07 11:58am
Msg #179383

And That Specific "Underlying Question"...

...is what I was searching for an answer to from our SOS. I've received what I believe is the correct response (i.e. it's permissible to place my notary seal on this document in its present form & verbiage) from them & will proceed on that basis.

Reply by Susan Fischer on 3/9/07 10:00pm
Msg #179300

In OR, a notary public is authorized ONLY to take an

acknowledgement, verify an oath, witness a signature, certify to a copy, and make or note a commercial protest.

While I can appreciate that the form in question was written by an attorney, and may/not been sanctioned by the presiding court, no other jurisdiction can supercede Oregon law. It appears that this form is asking you to notarize your own signature, which cannot be done.

That said, I haven't run this by our SOS yet - they may have no problem with the form or the use of a stamp, or they may insist on different language on the certificate.

Will you actually give yourself an oath? Will you enter your notarial act in your journal?

So barring a different opinion from our SOS, I would submit that in this state, I could not take my own oath and notarize my signature. I could, however, take an oath from the deponent that (s)he had been placed under oath by me, and notarize his/her signature. JMHO.

Cheers!
Susie

Reply by Dennis D Broadbooks on 3/10/07 6:21am
Msg #179318

Your "Take" on This Form...

...is identical to my first reaction. If I hadn't called & faxed the form to our SOS for their informed opinion I was going to decline the assignment. That's one of the reasons I'm posting this, so fellow Notaries can run this by their SOS to see if it passes muster.

Reply by BrendaTx on 3/10/07 9:12am
Msg #179352

Re: Your "Take" on This Form...Sorry Dennis,

I didn't see you had run it by your sos. Like I said in my post, the public notary doesn't normally see that and may not know all the nuances of our scope of authority buried in civil procedure when exercised in proper legal jurisdiction. I'll lay odds that almost any state allows this act if put into the proper context.

Reply by Dennis D Broadbooks on 3/10/07 12:01pm
Msg #179385

No Apology Necessary...

...as I assumed you hadn't seen that & were simply encouraging me in a direction you felt was in my best interests. I'm always receptive to that kind of feedback!

Reply by sue_pa on 3/9/07 10:20pm
Msg #179302

In PA we may 'certify'. The take I get from reading this board is that notaries in many other states would say 'we are notarizing our own signature' but not true here. The notary alone is responsible for the truth of the statement - no one else signs anything - no one else need be present for anything. I can type up a certificate that basically says ... Dennis Broadbooks is the biggest JayHawks fan known to mankind ... I sign and stamp it if I believe that it's true.

Reply by Dennis D Broadbooks on 3/10/07 6:25am
Msg #179320

Rock Chalk, Jayhawks!

And that statement in your certificate would be the "truest" statement you've ever notarized!

Reply by MistarellaFL on 3/10/07 6:40am
Msg #179322

Re: Rock Chalk, Jayhawks!

I graduated from KU myself a million years ago.
Go J-Hawks!

Reply by Marlene/USNA on 3/10/07 8:02am
Msg #179329

Yah, but. . .

. . .Dennis' example is an oath ("sworn to and subscribed" not a certificate ("certificate" in this case being a separate notarial power in PA). And notaries in MO are not permitted to certify anything except copies.

Reply by Dennis D Broadbooks on 3/10/07 8:49am
Msg #179338

Which is the Reason...

...I called our SOS for clarification.

Reply by Gerry_VT on 3/9/07 11:13pm
Msg #179304

It looks to me as if it would be just fine, if I crossed out the words "SWORN . . . 2007." In my state, the form of a jurat is not specified, so I could think of the first paragraph as a jurat that goes into more detail than usual. For most oaths, the affiant signs the oath, but I'm not aware that that is always required; for example, do oaths of office always have to be signed by the new office-holder, or is the notary's signature and seal sufficient?

Reply by MikeC/NY on 3/10/07 7:47am
Msg #179326

Not in NY

Notaries here can take depositions in civil cases, and can certainly administer an oath for a deposition, but the rules here specifically state that a notary cannot administer an oath to himself. I would have to strike the "SWORN TO AND SUBSCRIBED BY ME..." before signing it, and have another notary execute a proper jurat.

Reply by Chris_NJ on 3/10/07 8:41am
Msg #179335

Re: Not in NY

In NJ it cannot be done via phone (even though the person taking the oath is in front of you)

Reply by Jon on 3/10/07 8:27am
Msg #179332

In Ca the answer is NO.

Gov Code 8224.1 states "A notary public shall not take the acknowledgment or proof of instruments of writing executed by the notary public nor shall depositions or affidavits of the notary public be taken by the notary public."

The presence of the wording "SWORN TO AND SUBSCRIBED BY ME" would seem to make the document an affidavit and therefore not able to notarize.

Reply by JanetK_CA on 3/11/07 5:08pm
Msg #179485

I agree. While we can administer oaths in CA, we only notarize signatures. As the only signature here is the notary's, that would make it as if we are notarizing our own signature and there's no one else there administering an oath to the notary signing the statement. I wouldn't have a problem signing the doc, but I would strike out "SWORN TO AND SUBSCRIBED BY ME", as Jon pointed out (and others?) and I definitely would NOT put my stamp on it. If the doc was worded in such a way that the deponent was the one signing it, that would be a different story.