Posted by Hugh Nations Signing Agents of Austin on 9/14/07 1:34am
Msg #210907

Jurat under POA

This has been a thread in the recent past; however, I don't think anyone asked how the various SAs handled it. So...What approach have you used if you are confronted with a document that carries a jurat, but the signer is signing under a power of attorney?

I would appreciate hearing from some of the more experienced members of the board. Thanks.

Reply by Mary_in_VA on 9/14/07 1:44am
Msg #210909

I spent 20 years working in lawyers' offices in southeastern Virginia, a military area where POAs are very common. We always handled the jurat in such cases basically as follows:

The foregoing instrument was subscribed and sworn to before me this 14th day of September, 2007 by Jane P. Doe, as attorney-in-fact for John Q. Doe.

Hope this helps.

Reply by Hugh Nations Signing Agents of Austin on 9/14/07 2:04am
Msg #210910

Thanks for the response, Mary, but I don't think that is proper. You have someone swearing to the truth of what another person knows. I not only don't think that's possible under the law (to swear to someone else's knowledge), I don't believe one person can say definitively, much less swear to, what another person knows. That is the crux of the POA/jurat issue.

Reply by Dennis Larson on 9/14/07 10:05am
Msg #210944

Junk Docs, Affidavits, and POA's

First of all, I personally am not very fond of POA signings. They are a poor substitute for a split signing, and they tend to take about twice as long as a normal signing anyhow. Of course, there are always extenuating circumstances, such as overseas servicemen and the like.

Here are two recent cases in my experience. The first case was a daughter signing for her father on an investment purchase here in Florida. Actually, it was her buy, but he had better credit. The “junk docs” had numerous affidavits with jurat certificates. Notified the title company (small, out of Ohio) of the presence requirement. They had me pull all those pages out of the package.

The second case was a husband and wife who had added their daughter to title with a quit claim about 3 years ago. The mother (grantee) had the POA for the daughter (grantor). Notified title (large, out of PA), was advised to replace all the jurat certificates with acknowledgment certificates. Now, that didn’t quite sit right with me because both the husband and wife would actually be “sworn in” and in my presence. Ended up asking title if they would rather I use their jurat for the husband and wife (only), and a separate attached acknowledgment certificate for the POA’d daughter. They said, “Yes ok, do that.”

Most of the affidavits in a real estate transaction are typically part of the “junk docs” and are not recorded. So, Hugh is this a RE transaction? What does your hiring authority have to say?

Reply by Dennis D Broadbooks on 9/14/07 10:13am
Msg #210946

Unrelated Question...

...I notice in your NotRot profile you state you're a member of the National Association of Signing Agents. Is this the old NASA (Susan Pence's creation) or is there another organization going by that name now? I'm not trying to put you on the spot with my question.

Reply by Hugh Nations Signing Agents of Austin on 9/14/07 11:29am
Msg #210973

Re: Unrelated Question...

Dennis, either you've been smoking funny cigarettes again, or you read someone else's profile and thought it was me. Mine mentions no memberships at all; I didn't think it was appropriate to cite my membership in the Playboy Club Bunny Hoppers on NotRot.

Reply by Dennis D Broadbooks on 9/14/07 11:41am
Msg #210987

PCBH, Huh...

...can't say that I've ever heard of 'em, but then I've led a sheltered life!

Reply by Sylvia_FL on 9/14/07 11:55am
Msg #210991

Re: Unrelated Question... - Hugh

I believe he was asking Dennis Larson that question

Reply by Dennis D Broadbooks on 9/14/07 7:53am
Msg #210921

Here In MO...

...as a Notary I cannot (at least according to the last conversation I had with our SOS) refuse to perform a notarization based on the Attorney in Fact swearing to the truth of a document on behalf of the borrower. I had a long discussion on this topic with them about a year ago & it's their considered opinion we're there to perform our duty without taking into account the "lack of logic" present when an Attorney in Fact is placed under oath by the Notary swearing to the truth of facts in a document they may not have a clue about. The quotation, "lack of logic", is mine because like you I don't see how an affiant can swear to the truth of something they're more than likely not privy to. Sometimes logic is suspended by the state in instances like this. My advice would be to seek out an opinion from your own SOS (or whoever dispenses advice to Notaries in TX) first. I'm going to call my contact in our MO SOS Notary commissions division later today to see if their opinion has changed at all over the past year. They HAVE been known to alter their stand when a new legal opinion has been handed down impacting their interpretation of MO Notary law.

Reply by Hugh Nations Signing Agents of Austin on 9/14/07 8:36am
Msg #210924

Re: Here In MO...

Dennis recommends:

***My advice would be to seek out an opinion from your own SOS***

I have. The SOS says you cannot swear to facts known to another person. Having finally -- and, it appears, quite inadvisedly -- sought an opinon on the question, I am now left with the dilemma: What the hell do I do? That was the reason for the question to the board.

Reply by Dennis D Broadbooks on 9/14/07 9:15am
Msg #210929

You're On Your Own...

...with this one, Hugh. If your SOS says you can't do it then I don't see much wiggle room. Have you spoken to the TC or lender?

Reply by Dennis D Broadbooks on 9/14/07 9:51am
Msg #210934

Just Spoke With Our SOS...

...& they haven't changed their tune. Just because the affiant is an Attorney in Fact we cannot refuse to perform the notarization in a jurat situation based on the Notary's perception or belief the AIF lacks knowledge of the facts in a document.

As is sometimes necessary...please note these comments of mine in this thread are based on Missouri Notary law & should not be construed as the gospel in your individual state. Do your own research to come to your own conclusions.

I wish you the best in your dilemma, Hugh, & BTW the disclaimer isn't aimed at you!

Reply by NCLisa on 9/14/07 8:07am
Msg #210922

In NC we use the jurat and the BO signs as you normally do with a POA: John Doe by Jane Doe his AIF. The POA document gives the AIF all the same rights as if he/she were in fact the actual person they are signing for. That being the intention of the document, then as their AIF they can swear to the truth of a statement, etc. In a real estate transaction, the POA's normally give those powers.

This is not legal advise, just my experience as a real estate paralegal working for attorneys in NC. In CA as an EO, we did it the same way, but that was up to 2000, not sure what the CA notary laws are these days.

Reply by ReneeK_MI on 9/14/07 9:05am
Msg #210926

It is a dilemma, Hugh - I've done so much research into this that seeing your question gave me an instant headache. All I could find WRITTEN on this was (ironic as it is) on the site of another TX Atty, who was of the opinion that it couldn't be done.

However, I offer the following points:

1) First and foremost, the very nature of the question and lack of solid, written directive indicates this is a request for interpretation of the law (obviously). I can't and don't interpret law - I notarize signatures and take other people's affirmations as to what is true. I ensure my certs or accurately completed.

2) I have read POA's that STATE the principle is authorizing the AIF to do blah blah blah, INCLUDING sworn statements.

Reply by SharonMN on 9/14/07 10:45am
Msg #210954

Obviously this is a state-specific question as to what's allowed. However, it may be helpful to compare a POA to an officer of a company. Joe Smith can swear to facts about Joe's Auto Body in his capacity as President of Joe's Auto Body, so why couldn't Joe Smith swear to facts about Mary Smith in his capacity as POA? In either case, it would be Joe's responsibility to decide if he knew enough to make the statements under oath.

You would want to make sure the notary certificate is clear that it's Joe that appeared before you and took the oath.

Reply by Hugh Nations Signing Agents of Austin on 9/14/07 11:47am
Msg #210988

Sharon queries:

***Joe Smith can swear to facts about Joe's Auto Body in his capacity as President of Joe's Auto Body, so why couldn't Joe Smith swear to facts about Mary Smith in his capacity as POA?***

The simple answer is that a corporation, which is not a natural person, cannot act except through natural persons. The corporation further has no memory except for archival memory or the memories of the persons through which it acts, nor does it have the capacity to act except through individuals. In either case, the action must be done through a person.

Conversely, the grantor of a POA presumbly does have memory separate and apart from the person exercising the POA, and does have or did have the power to act.

None of which addresses the question: What do you do when a document requires a jurat, the signer is acting under a POA, and the grantor of the POA no longer has the requisite capacity to swear to anything, nor will he ever have the capacity again? You can even postulate a case in which the holder of the POA is operating in his capacity as an institutional trustee, and has never met nor had any interaction whatsoever with the grantor of the POA, who now doesn't even know his own name. How can the POA attest to facts known to the grantor? Is it acceptable to substitute an acknowledgement for a jurat under such circumstances?

I'd like to hear what PAW has to say about this. And when you've done with that, could you please give me a comparison of the harmomics of the Platters with the Mills Brothers, with special attention to the bass component?

Reply by Sylvia_FL on 9/14/07 12:00pm
Msg #210993

"I'd like to hear what PAW has to say about this."

Paul will be offline for a few days. But I do know he will not do a jurat for a POA as he and I have discussed this many times.

Reply by MichiganAl on 9/14/07 11:13am
Msg #210962

To me the answer is simple - it's not my problem

Although I think it's another interesting example of the lack of logic we sometimes see in the mortgage industry, as a notary it's not up to me to decide. Whether the signer has the knowledge and ability to swear to the truthfulness of something on behalf of someone else isn't my business.

Reply by Calnotary on 9/14/07 11:33am
Msg #210978

Re: To me the answer is simple - it's not my problem

One time I refused a signing from a big title Co because the package had like 10 jurats with POA. The title thought I was crazy, I gave them my explanations and they said It made sense. After that I have done many signings with POA with jurats. After reading and talking to CA SOS, Who am I to question the contents of the documents, I am there to notarize their signatures. JMHO. In your case Hugh it is different you are an attorney.

Reply by Dennis D Broadbooks on 9/14/07 11:36am
Msg #210984

If TX SOS Says Otherwise...

...that someone "cannot swear to facts known to another person", what would you do if you were a Texas Notary? Ignore the SOS advice? Not to put words in his mouth but it appears Hugh is saying the SOS has told him it IS his business & thus his query here.

Reply by MichiganAl on 9/14/07 12:31pm
Msg #211010

Re: If TX SOS Says Otherwise...

I take it you're referring to this: "The SOS says you cannot swear to facts known to another person." I read that to be directed towards the person signing. That they should not be swearing to facts know to another. YOU isn't the notary, they're not swearing to facts. YOU is the signer. Me - notary - impartial - no legal advice - no UPL - not my call. Still, as I think you said earlier, Hugh IS an attorney and the situation for him may be different than for the rest of us. It really is an interesting quandary for the signer.