Posted by SE/Florida on 3/13/07 5:54pm
Msg #179737

Signer must be in presence of Notary...

This is clearly Florida law, right? I work full-time for a construction company. Two weeks ago I come in and I'm presented some sort of paper work by my boss. It was signed the evening before by our client giving the company permission to pull permits, etc. My boss wanted me to notarize client's signature. I told him that I couldn't according to Florida law, client must be in my presence. Oh my, he was so angry! He stated that he and his assistant both witnessed her signing it and that he's never had a secretary who had a problem notarizing such before. I told him I was sorry and that I'd be glad to go to the borrower on my own time to take care of it. He was so angry, he didn't even want me to do that!

I post this today, because he brought it up again today. I thought it was over and done. I had even made him a copy of the statute from the Florida Governor's Reference Manaul. It just upset me so much. Was I wrong? What would you have done and what would you do now?

Reply by Sylvia_FL on 3/13/07 6:07pm
Msg #179739

No, you were not wrong! Remind your boss that if you did it he would end up in the jail cell next to you! Stick to your guns - and the law.
If you are a member of the ASN you can call their hotline and hand the phone over to your boss and they will set him straight.
Tell your boss that you are not going to risk your commission by committing an illegal act.

Reply by SE/Florida on 3/13/07 6:15pm
Msg #179743

Thank you Sylvia. You are always a dear! When I told him about it being illegal, he didn't even want to hear it! He used the example of speeding and that being illegal too! I told him I was not perfect and I probably speed every day, but they wouldn't take my car away from me for doing so and it wouldn't put me in jail (in most cases)! The hard-headedness of some people!

Reply by Gerry_VT on 3/13/07 6:19pm
Msg #179746

You might tell the boss that if the notarization isn't done properly, the signer may be able to get out of the deal. Even if he trusts the signer, in business, companies go bankrupt from time to time, and the bankruptcy trustee will try to get the bankrupt firm out of as many debts as possible, whether the bankrupt firm likes it or not.

Reply by Sylvia_FL on 3/13/07 6:40pm
Msg #179754

Just as a precaution as your boss doesn't seem to concern himself too much with the law, make sure your notary seal is ALWAYS under your control. Make sure no one else has access to it.

Call me if you need me

Reply by SE/Florida on 3/13/07 7:20pm
Msg #179756

You are so right. I always keep my seal in my possession. I've got your number and again, I truly value your advice and wisdom!

Reply by CaliNotary on 3/13/07 7:28pm
Msg #179758

"Was I wrong? What would you have done and what would you do now?"

Do you really need to ask this? It's clear you know what the right answer is, what does it matter what anyone else on the board thinks?

Are there more experienced people second guessing themselves on the board lately? This is the third time in the past 24 hours I've seen a question like this.

Reply by SE/Florida on 3/13/07 7:42pm
Msg #179760

Just one of those times I needed to vent and needed some validation I guess you could say. Since there are few people in my office and none of them have a clue about notary law. Even when I showed it to them in black and white, they reasoned with the boss. I have no doubt that I did what was right. Perhaps the question should have been how others would have handled the whole situation. It just blew my mind that no one in the office understood and tried to make me feel I was wrong.

Reply by Linda_H/FL on 3/13/07 8:29pm
Msg #179767

Re: Just my personal two cents' worth

and I don't know your situation, but if it was me and I was forced to justify myself and the law to my boss two days in a row I'd be hitting the classified ads...but that's me.

Good luck to you!!

Reply by Linda_H/FL on 3/13/07 8:30pm
Msg #179768

Re: Just my personal two cents' worth..P.S.

Cuz if he did it once he'll do it again - you can count on it!!

Reply by MikeC/NY on 3/13/07 9:16pm
Msg #179778

There's no question that what you did was the right thing, but it may be time to start looking for other employment. Your boss obviously has no clue about what a notary's responsibilities are, and he obviously doesn't want to know. Maybe the analogy you should use to explain this to him is that it's similar to bribing a building inspector (unless he does that also, in which case you would just be wasting your time...).

What you need to ask yourself now is not whether you did the right thing, but whether you want to continue working for someone who is going to try to browbeat you into doing something you know is illegal. Easy for me to say because I'm not in that situation... but your only other option at this point is hoping the problem will go away. How likely is that?

Good luck with whatever you decide to do... and if he decides to fire you because of this, you should definitely consider consulting an attorney.

Reply by janCA on 3/13/07 10:00pm
Msg #179787

Subscribing Witness in CA

I don't know Florida Notary Law but in CA this could have been done with a subscribing witness. The principal could have stated and/or signed the document in the presence of your boss. Your boss signs as a witness. That makes him a subscribing witness and this is proof of execution by a subscribing witness. I've only had one subscribing witness in the six years I've been a notary.

Reply by Susan Fischer on 3/13/07 10:40pm
Msg #179796

No subscribing witnesses in OR (except some RE docs). n/m

Reply by MikeC/NY on 3/14/07 6:43am
Msg #179816

Re: Subscribing Witness in CA

That was my first thought also (we can do that here in NY too), but I took a quick look at FL law; a subscribing witness is not allowed there except in special circumstances for real estate transactions.

Reply by Susan Fischer on 3/14/07 7:24pm
Msg #179958

"...special circumstances for real estate transactions" same

language in OR.

I'm glad. I can foresee some sticky wickets there.

Reply by Sylvia_FL on 3/14/07 6:59am
Msg #179818

Re: Subscribing Witness in CA

Not an option in Florida.

Reply by PAW on 3/14/07 8:13am
Msg #179828

As Sylvia says, "not in Florida"

Our manual has devoted a page of text to this very subject. It makes for very interesting reading (at least I thought so). The following information can be found on page 54 of the Florida Governor's Reference Manual for Notaries, ed. 2001:

Q - May I notarize a signature without the person being present if another person swears that the person signed the document?

A - No! The Notary Section receives frequent inquiries about "notarizing a person’s signature by subscribing witness." Evidently, some notaries believe that it is permissible to notarize a signature when the person is not present - if someone who witnessed the signing of the document appears before the notary and swears that the person actually signed the document. Some states, like California, do, in fact, allow such notarizations, but Florida does not. Misunderstanding may also stem from a section in Florida law that provides a method by which instruments concerning real property may be entitled to recording in Florida when the document signer cannot appear before a notary to acknowledge his or her signature. You may hear this procedure referred to as "proof of execution by subscribing witness."

We recently asked the leading experts in Florida about this issue. The Attorneys’ Title Insurance Fund, Inc. is considered the state’s foremost authority on matters related to the real estate industry. The following information should clarify any confusion which may exist on the subject.

First, this method is used only for acknowledgments on real estate transactions. Second, this is not an alternative method of notarization. The person whose signature is being notarized must personally appear before the notary at the time of the notarization - without exception. Rather, this provision is a method by which a document can be recorded in Florida. For example, say a person signed a document related to a real estate transaction but did not acknowledge his signature before a notary public. Later, the document cannot be recorded by the county clerk because it lacks notarization. The problem is further complicated when the document signer cannot be located or is deceased. Florida law provides that one of the subscribing witnesses on the document may "prove" the execution of the document by swearing that the person did actually sign the document. With that sworn statement, the document may then be recorded.

The proof method is not commonly used. In fact, one experienced lawyer at Attorneys’ Title Fund said that she had never seen a real property instrument recorded using this method and that, for insuring purposes, her company would investigate thoroughly before issuing title insurance. As a notary public, you will probably never encounter this situation. Generally, when there is a problem with the recording of a document, an attorney handles the matter and takes other legal steps to remedy the situation.

Some private companies produce form "certificates of proof." We prefer the affidavit format instead. By using an affidavit with a standard jurat, the notary will not be certifying more information than is required of the notary. It is up to the affiant to state the facts and swear to the truthfulness of his or her statement.

Remember then, if a co-worker, family member, or anyone else asks you to notarize another person’s signature based on a sworn statement that he or she saw the person sign the document, JUST SAY NO!!

Reply by janCA on 3/14/07 8:30am
Msg #179831

Subscribing witnesses in CA

cannot be used for deeds concerning real property in CA, only for general notarizations. Here is a quote from the handbook. Government Code Section 27287. "A proof of execution by a subscribing witness cannot be used in conjunction with any quitclaim deed, grant deed document (other than a trustee's deed or a deed of reconveyance), mortgage, deed of trust or security agreement.

Reply by BetsyMI on 3/14/07 8:53am
Msg #179833

Subscribing Witness in Michigan

Our handbook says the "ideal subscribing witness personally knows the principal signer and has no personal beneficial or financial interest in the document or transaction". So here in Michigan the subscribing witness situation would not work for this scenario since the boss obviously has an interest in the transaction.