Posted by bowie_MD on 3/12/07 11:30am
Msg #179564

venue vs. where I was appointed as a notary

If Acknowledgement says
"state of maryland, ________________________, to wit:" I would fill in the County in which I am notarizing the docs (venue), correct?
but then is says ...."before me the subscriber a notary public of the state and county aforesaid,....
I assume this has nothing to do with the fact that I was approved as a notary from a different county?
I know its basic and I should know the answer, but this is the first time I have seen this language.
Also, I was told by a title company manager that I should always just put the county which is on my seal and not the venue county, no matter what?
what do you think?
thanks

Reply by Janet Sobers on 3/12/07 11:34am
Msg #179565

In Louisiana we ALWAYS have to put the place the document is executed, which of course will also be a place that we are qualified to act. In my case, I am commisioned in East Baton Rouge Parish, but qualified to act in 8 other parishes. So, if the act takes place in one of the others, I am in fact a notary for that parish (county in every other case). Not sure if this applies to you, but it is what we do here. Have a great day, and let's hear from others because I would be interested in reading... Thanks

Reply by Susan Fischer on 3/12/07 11:49am
Msg #179574

In OR, the venue (jurisdiction) is the county where the

notorial act is taking place - always. The "aforesaid..." refers to the venue stated in the previous sentence.

In my state, the county is not on the seal, and notaries can notarize in any county in the state, as it is the state that commissions notaries public.

No title company (or anyone else, for that matter) can dictate the jurisdiction on a certificate in violation of state law.

What does your handbook say?

Reply by MikeC/NY on 3/12/07 12:03pm
Msg #179580

Venue is always where your feet are when you notarize - doesn't matter what the TC thinks. If MD is anything ike NY, the county on your seal is simply the county you qualified or registered in. As long as your state allows you to notarize anywhere within the state, then why wouldn't you be a notary of the "county aforesaid" ?

I think Louisiana is the only state that restricts notaries by county (or parish), but their legal system is different.

Reply by Marlene/USNA on 3/12/07 1:22pm
Msg #179588

Bowie, the phrase "a notary public of the state and county aforesaid" means that you are promising with your signature and seal that you are qualified to notarize in the "state of Maryland" and in the county you put in the blank.

Not a problem for you, a Maryland notary's jurisdiction covers the entire state of Maryland.

Has nothing to do with the county in which you were appointed or the county on your seal. It's the venue, the county where your feet are when you are notarizing, no matter what the TC manager said (s/he's wrong).

Reply by Genkichan on 3/12/07 2:14pm
Msg #179596

Re: I agree w/ Mike and Marlene --

Just put in the county where you are physically doing the notarizing and leave the rest alone.

Reply by dickb/wi on 3/12/07 5:56pm
Msg #179627

marlene is right and when are the title....

companies and lenders going to relize thet the notary block is the relm of the notary and not try to tell us how to do it or even more to quit prefilling the notary block.....i have to modify or completely cross off notary blocks a lot recently and attach a wi ack/jurat because they are pre filled wrong.....a pet peeve of mine.....jmho........

Reply by BrendaTx on 3/12/07 8:48pm
Msg #179650

Dick, on the other hand.....

Dick, with all due respect, the title companies, lenders (and in Texas, the lawyers)* are putting the information they believe they require. They may be guided by legal counsel or state law, or even case law, or AG opinion .

Two things I want to say - and all of it is IMHO, naturally.

1) In my state, as long as the necessary elements are in the notary block I am at liberty to use them as they are presented. I don't fool around with them if they have the correct statements in them to suffice. It just makes it harder for the lender and title IMHO.

2) There is a very narrow focus here (NR forum) because many of the notaries have only been exposed to loan documents. This is something that really bothers me as I read the discussions because it is assumed because of the loan signing business such as we know it that notaries exist to complete loan packages. That's not the case. Notaries perform notarizations which are varied and fill the shelves of courthouses.

I have been exposed to notarial acts for years which are worded nothing like the Texas handbook provides.

I "grew up" as a notary working for a probate and real estate lawyer who had all kinds of notarial language in his head. He'd just dictate it. Pretty soon, I had lots of it memorized, as well. But, since I am not a lawyer, I have no right to deviate from the Texas handbook unless the signer presents it to me. If they come to me needing a certificate, they pick it from the statutory forms in my handbook.

Fast forward fifteen years and I don't have to depend on the lawyer to create the blocks for me as it has been canonized (sp?) into a manual of sorts. The one I use is nothing but notary blocks but much of this can be found in what's called volumes of transactions called "The Texas Transaction Guide." It's been around for lots longer than I have.

However, I now have a 75 page book to use which has no less than one hundred fifty examples of notarial certificates which are tailor made for special types of executions in legal transactions, affidavits, including but not limited to land transactions and loan documents. Each of them are not only cited by state law but many by case law and AG opinions.

It bothers me that the focus here is so limited that people are patently sure that they know all the answers about the notary block. Our handbooks give us a good working set of rules for us to abide by when we are performing public notary acts independently and not working under direct legal supervision. However, that does not mean that there is not more to it than that. Really it doesn't.

I don't say much about these things because if I started spouting block language not in my handbook while chatting here I would definitely get into UPL. However, I can assure you that there are people from more than just Texas who read this forum and who, just like me, know that it doesn't begin and end with a 25-page manual you get with your notary commission.

I agree that we (loan signers and independent public notaries) should stick to what we can glean from our manuals...but just because it's not in there doesn't mean that it's wrong.

In Texas, without other legal authority guiding me I can only direct a signer who needs a certificate to select from a few certificates as contained in my handbook. However, if they come to me with a legal document with the basic elements of the notary act within the block but without the specific handbook wording, that does NOT mean it is wrong for me to utilize that certificate. In fact, I probably NEED to stick with what is presented to me if it contains the main elements of the notary act and is accurate to the act necessary.

Going along with what is presented, of course, does not mean back dating, a person not appearing before the notary, etc.

*(Lawyers are required to draft all documents in loan transactions in Texas. If the documents aren't squeaky clean then there's lawyer in trouble along with the lender/title entities.)

Remember folks...I am in Texas and I am not a lawyer and yada, yada, yada. Not legal advice.

Reply by Susan Fischer on 3/12/07 10:03pm
Msg #179658

***** n/m

Reply by Lee/AR on 3/13/07 8:58am
Msg #179680

Yep, 5 Stars! Great post & perspective, Miss Brenda... n/m

Reply by BrendaTx on 3/13/07 9:34am
Msg #179687

Re: Yep, 5 Stars! Wow...thanks, Lee and Susan

I didn't know whether Susan was cussing me or what. Glad you translated for me there, Lee. LOL

Reply by Susan Fischer on 3/13/07 10:13am
Msg #179693

Sorry - thought that was a given...'@&%##' = cussing ;) n/m

Reply by PAW on 3/13/07 10:00am
Msg #179691

Excellent

Florida is the same way. Our manual gives many, but certainly not all, of the different and varied forms of a notary certificate. Throughout the manual, it states that the certificates are to be "substantially in the same form." The only statutory requirement is that the certificate must contain certain elements (9 of them), but it doesn't say how those elements are to be presented. (F.S.A. 117.05(4))

Reply by MikeC/NY on 3/13/07 11:50am
Msg #179703

Notarial block wording

The only notarial wording in NY that is specified by law is the general acknowledgment used on all documents related to conveyance of real estate (except a will). Other than that - and knowing what we can NOT notarize - we go with the wording provided in the notarial block on the document. Unless the document is related to a real estate transaction, changing anything could be considered UPL (especially if it was drawn by a lawyer).

Reply by Gerry_VT on 3/13/07 12:42pm
Msg #179706

Creating notary block not UPL

Several times in this thread, I have read that creating the wording for a notary block might be unauthorized practice of law. I just can't see how that is so. Sure, choosing which act to perform (oath vs. acknowledgement), or suggesting what capacity the signer should sign in (individual, trustee, attorney-in-fact, etc.) would be UPL, but once the signer chooses the act, it is within the authority of the notary to compose the notary block.

Think about it: government officials (thats us) perform their duties every day of the week without a lawyer standing by their sides, and most of them are not lawyers. The notary block is our duty area, and the notary laws authorize us to create it. Of course, some states give little or no choice about the notary block, while other states give no guidance at all about them, but they are still our turf and within our authority.

I do not mean to advocate creativity; it would be good practice to stick with tried and true notary blocks straight out of the state notary manual (if there is one). or blocks that have been composed by an attorney. I'm just distinguishing what is good practice from what is illegal.

Reply by BrendaTx on 3/13/07 1:04pm
Msg #179707

Re: Creating notary block not UPL - Here's my logic...

http://www.sos.state.tx.us/statdoc/edinfo.shtml

MAY A NOTARY PUBLIC DETERMINE WHICH TYPE OF NOTARIAL CERTIFICATE SHOULD BE ATTACHED TO A DOCUMENT?

No. A Notary Public who is not an attorney should only complete a notarial certificate which is already on the document or type a certificate of the maker's choosing. If a notary public is brought a document without a certificate and decides which certificate to attach, that notary public would be "practicing law." However, a notary public is provided copies of sample notarial ertificates with his or her notary commission. A person for whom a notarization is performed may choose the notarial certificate, and the notary may add such certificate to the document.

Reply by Gerry_VT on 3/13/07 1:24pm
Msg #179709

Re: Creating notary block not UPL - Here's my logic...

I read the quote provided by BrendaTx as providing one legal course of action if a signer presents a document with no notary block: let the signer choose one of the certficates from the state's notary handbook. That would be a wise course of action, but the quote does not claim that is the only legal course of action.

The quote states it qould be practicing law for the notary to decide which certificate to attach, but the question being answerd asks "May a notary public determine which TYPE of notarial certificate should be attached . . . ?" So the quote could be read as meaning the signer should choose the TYPE (acknowledgement vs. jurat) but the notary can create the wording, or it can be read as the signer must choose both the TYPE and the wording. I think the Texas Secretary of State should revise the web page to make it clear which reading is intended.

Reply by BrendaTx on 3/13/07 1:48pm
Msg #179711

Re: Creating notary block not UPL - Here's my logic...

**I think the Texas Secretary of State should revise the web page to make it clear which reading is intended.**

I believe I understand exactly what they mean. I'm sticking to what I feel is correct. Thanks for your input.

Reply by Susan Fischer on 3/13/07 2:14pm
Msg #179713

"The notoary should not take it upon himself or herself to

select or substitute a certificate on behalf of the person." As in many other states, in OR, it is not in the notary's pervue to 'create' the certificate. "The elements must be included, but the A.G,'s opinion clearly and emphatically states that a notary public' must NOT give advice or DRAFT A CERTIFICATE."

"The notary public may point out ORS 194.565 and its required elements of the certificaqte, and may suggest that the person using one of the 'short forms' in ORS 194.575. However, the notary public should not select a form of certificate for the person or otherwise draft a certificate for the person."

Seems pretty clear to me.

Reply by Gerry_VT on 3/13/07 3:12pm
Msg #179724

Re: "The notoary should not take it upon himself or herself to

Well, it would wise for an Oregon notary public to follow the opinions of the Oregon attorney general, and very foolish to accept an opinion of an unknown person on an Internet discussion forum. But I think the Oregon attorney general is looking at it from the wrong point of view.

A notarized document has at least two parts; there is the part that the signer signed or swore to; that is the signer "speaking", and the signer can say whatever he wants to, with or without the advise of an attorney, and the sigher will be responsible for the consequences. In the notary block, it is the notary who is "speaking", and the notary can express himself in whatever ways the law allows, and is responsible for the correctness of the notary block. The Oregon A.G.'s opinion makes it sound as if the signer gets to tell the notary how to express him/herself. Well, the legislature can tell the notary how to express him/herself, but not the signer.

Reply by Susan Fischer on 3/13/07 7:57pm
Msg #179763

The rationale for the A.G.'s opinion: "A notary public is

just an impartial witness, not an expert on legal procedure." Therefore, the rule is, "Don't advise or select the certificate for the client. If you do, you may be practicing law illegally."

Reply by Gerry_VT on 3/13/07 9:13pm
Msg #179777

Re: The rationale for the A.G.'s opinion

The opinion seems poorly thought out to me. Apparently in that state (like mine) there is no mandatory wording. So the notary reads the certificate presented by the signer, and thinks about it, and decides it is OK or not OK. If the notary isn't qualified to figure out which certificates are acceptable, why can the notary accept any certificate that isn't straight out of the notary handbook?

I'd be curious to know where this opinion is posted.

Reply by MikeC/NY on 3/13/07 7:28pm
Msg #179757

Re: Creating notary block not UPL

<<Several times in this thread, I have read that creating the wording for a notary block might be unauthorized practice of law. I just can't see how that is so.>>

Depends on what your state allows. Some (such as FL and TX) provide examples for your client to choose from. Mine doesn't - we have a specific acknowledgment form to use with all real property transactions, a suggested format for a jurat, and no guidance after that. NY law specifically says that only attorneys can draw legal documents, and for anyone else to do so is UPL. "Drawing documents" includes adding the notarial wording, as far as I can tell. I'm limited to attaching a loose certificate to a document in a real property transaction or hand writing a jurat if told that is what is required, but I can't create anything beyond that.

Reply by Gerry_VT on 3/13/07 9:21pm
Msg #179781

Re: Creating notary block not UPL

MikeC/NY wrote "NY law specifically says that only attorneys can draw legal documents". I don't think that's quite right. Non-lawyers can draft legal documents FOR THEMSELVES. It's drafting legal documents for other people that's restricted. So the question is, when a notary writes a jurat or acknowledgement, is he doing it for the signer, or is he doing it for himself? After all, the notary is describing what he saw and what he heard; it is his statement, not the signer's statement. So there is an arguement that the notary is acting on his own behalf and he doesn't need a lawyer to act on his own behalf.

Reply by Susan Fischer on 3/13/07 11:14pm
Msg #179805

Notaries act as commissioned notaries public, rather than

individuals. We notarize on behalf of the State, and that is the basis for the assumption that the notary operated within the law and is trustworthy.

Notaries are impartial witnesses, not personally involved. We no longer control the document. If a notarization is challenged in court, the notary had better not have practiced law.

JMHO.

Reply by MikeC/NY on 3/14/07 7:16am
Msg #179822

Re: Creating notary block not UPL

<<MikeC/NY wrote "NY law specifically says that only attorneys can draw legal documents". I don't think that's quite right. Non-lawyers can draft legal documents FOR THEMSELVES. It's drafting legal documents for other people that's restricted. So the question is, when a notary writes a jurat or acknowledgement, is he doing it for the signer, or is he doing it for himself?>>

I think you're trying to split the hairs too finely. Of course an individual can draw their own docs - but that means they also have to decide what type of notarization is required and what language to use. It's not my place to do that for them, and doing it can get me in trouble in this state. If the document is later challenged in court and it's discovered that the signer relied on me to determine the wording for part of it, I'm up the proverbial creek without a paddle...

It may be different in other states that give more guidance to the notary, but I wouldn't take that chance under NY law.

Reply by PAW on 3/14/07 7:32am
Msg #179823

Re: Creating notary block not UPL

As a professional Notary Public, you have (or are supposed to have) the expertise to determine what constitutes an acknowledgment and a jurat, and know the difference between them. Therefore, the notary, when writing (e.g. drafting) the notarial certificate at the direction of the document author, custodian or recipient, knows how to properly do it, given that it will be an acknowledgment or jurat.

I do not think that any court, even in NY, would sail the notary up the proverbial creek without a paddle if that notary provided a certificate of the type requested.

Hypothetical scenario: A person asks you to notarize a document for them. There is no notarial certificate preprinted on the document. What do you do?

I submit, that you need to explain to the document custodian/signer what a 'notarization' is and the different types. The custodian/signer then tells you what they want (ack or jurat) and you provide a pre-prepared loose certificate, and perform the notarial act.

Is this not what you would do? There is no difference in manually writing a notarial certificate on an existing document and attaching a loose certificate that was prepared by the XYZ company, ABC law firm, or yourself. It is the notary's responsibility to assure that the notarial certificate is compliant with their state laws, no matter who prepares it.

Reply by MikeC/NY on 3/14/07 10:06am
Msg #179845

Re: Creating notary block not UPL

As I said, everyone has to be aware of their own state laws and act accordingly. What flies in FL and VT may not fly in NY. I prefer not to take the chance.

Reply by Gerry_VT on 3/14/07 11:22am
Msg #179855

Re: Creating notary block not UPL

MikeC/NY wrote "Of course an individual can draw their own docs - but that means they also have to decide what type of notarization is required and what language to use. " I agree, up to where he wrote "and what language to use". If a nonlawyer composes a notary block for me to complete, I view it merely as a suggestion, which I am free to reject if I am unsure that it meets my state's requirements. If the notary block was composed by an attorney, I'm more likely to use it, but will still scan it for errors; anybody can have a bad day, and word processing software sometimes misbehaves. The notary block is MY statement and it is up to ME to be sure it is correct.

Reply by BrendaTx on 3/14/07 11:44am
Msg #179856

Re: Creating notary block not UPL

The way I interpret my rules in Texas is if the document needs a certficate then I present the samples provided by the state. The signer selects one. I can type it, or maybe I already have a stack ready which I can attach.

Gerry, I guess what I am saying is that I should not do is to vary from the suggested samples of certficates or presume to "know" which one is needed without consulting the signer.

To me, this is to protect the notary who might choose the wrong form. Not all notaries know the difference between the type used on land transactions vs. the type used on an affidavit. It is not the responsibility of the Texas notary to know the difference.

Reply by Gerry_VT on 3/14/07 3:33pm
Msg #179906

Re: Creating notary block not UPL

It isn't the responsibility of a Vermont notary to know whether a document should be acknowledged or sworn to (or any other notary act either; one stormy night on a Lake Champlain ferry, marine protests came to mind). But once the act has been selected by the signer, the notary is responsible that it is worded correctly. By far the safest way to make sure of that is to copy a sample from the Vermont notary handbook.

Reply by BrendaTx on 3/14/07 3:41pm
Msg #179909

Re: Creating notary block not UPL - is it possible that you

and I agree on this? I don't argue with what you are saying? LOL

Reply by MikeC/NY on 3/14/07 12:12pm
Msg #179866

Re: Creating notary block not UPL

Again, we do not have these requirements to refer to in NY, other than suggested wording for a jurat, a specific form to use for a conveyance of property, and the fact that any acknowledgment, at minimum, must include the date and a statement that the person appeared before the notary and was identified. We don't even have guidance on what constitutes proper ID - all we're told is that we must be "reasonably sure" that the person is who they say they are.

I do not write the acknowledgment for them, nor do I tell them what to write, because I'm not authorized to do that IN MY STATE. My responsibility is to examine the wording, figure out if it's an ack or a jurat, and proceed accordingly - that's all I'm supposed to do IN MY STATE. What you can and cannot do in your state may be totally different.

As I said to PAW, what flies in VT and FL may not fly in NY.