Posted by Roger_OH on 7/9/08 9:06pm
Msg #254699

Marital status/capacity

Haven't seen this discussion for quite some time, so thought I'd touch on it.

Had a basic investment property puchase signing. On the MTG notary certificate, buyers were
preprinted as John Doe and Jane Doe, husband and wife. I crossed out the marital status and attached a note that I could only notarize signatures, not marital status. TC called today to chastise me, saying I altered a "legal document" without authorization.

My response was that the only time I can notarize anything other than just a signature is if the signer is an attorney in fact, trustee, or corporate officer, which I'd then include in the notary block. I further stated that the notary block is the exclusive domain of the notary; she disagreed, saying it was part of the document and I couldn't alter it.

I know there are some states where ANY capacity can't be notarized. Just wanted to vent my frustration with this company.

Reply by sue_pa on 7/9/08 9:33pm
Msg #254704

Roger, your "problem" might have been writing them a note. When I doctor up notarial language, I just do it - I never point out the error in someone else's ways. Bringing it to the front and center almost guarantees someone taking a closer look ... and if that someone doesn't know what they're doing you end up with the hassle.

Reply by Becca_FL on 7/9/08 9:45pm
Msg #254706

I cross it out all the time, Roger.

When "training" a new TC, you might want to call the EO and explain to them what you are required to do by law. This has been helpful to me and then the TC has no surprises when they get a perfectly executed package back, but do it after you have completed the closing. I even copy the page from the journal and include it with the executed documents to further state my case. Most EOs are happy with my compliance, the ones that are not don't deserve their title, IMO.

Reply by BrendaTx on 7/9/08 10:16pm
Msg #254708

Can't find my source at the moment but

I am 99% sure that it is not a problem in Texas for "husband and wife" to be left on the ack...or "a single man" or other marriage related language.

I'll try to find my source and verify that tomorrow. I thought I had it right here at my fingertips but I don't. I will dig around and try to find the source.

I know this often creates concerns with notaries but somewhere I have a source that says this isn't a problem for Texas notaries.

Disclaimer: Not a lawyer...might be insane...or a liar...in other words don't take anything I say at face value...call the SoS of Texas to verify for yourself.

Reply by sue_pa on 7/10/08 6:20am
Msg #254730

Re: Can't find my source at the moment but

not a problem in PA either.

Years ago when I started reading these boards I became paranoid that I had been doing my job wrong for years. I started questioning everything I knew. At a seminar sponsored by my paralegal assoc., my state association president was the speaker. My hand was up the whole time and crossing out 'husband and wife' in the cert was one of my questions. He said it didn't matter.

Reply by WDMD on 7/10/08 6:48am
Msg #254731

Re: Can't find my source at the moment but

"My hand was up the whole time and crossing out 'husband and wife' in the cert was one of my questions. He said it didn't matter."

Same in Maryland. I questioned the SOS on this a few years back and they said it is not prohibited to have it.

Reply by Joan_OH on 7/10/08 7:13am
Msg #254732

Problem in Ohio is......

It does not reference that it cannot be done in our limited Ohio Revised Code either. In Ohio, the SOS pawns instruction off to each of the county's Bar Associations. Maybe Roger's Bar association has said that you cannot do it - My Bar Assn does not disallow it.

My local Recorder's office used to have rules listed on their site and one was that the notary certificate HAD to match EXACTLY what was on the face page of the document to record. They have since removed all instructions from out website, but I just looked up my daughter's recently filed Mortgage. The Recorder - yes in the Recorder's handwriting - wrote "an unmarried woman" on the notary certificate. I have to assume the rule in my county still stands - the entire vesting line must be in the certificate to record or why else would the recorder add it in?

Roger has been working diligently with our SOS to get our notary training and rules back where they belong - with the SOS. Everyone County in our State has different rules depending on what the Bar Assn decrees.

New one up here in my county that I would have never known about had I not asked for and paid for a new book the last time I renewed - I cannot notarize someone signing as a POA or and Authorized signer of a Corp without personally verifying by seeing documentation that they have the authority to sign in that capacity. No one in my county would know that because they implemented the new rule without disclosure or notification last 11/07. Actually, they seemed a bit put off that I actually asked for the most recent book.

In Ohio, it's not only the total lack of rules - it's the 88 counties have 88 different sets of rules and not one of them communicates them.

Joan-OH

Reply by Lee/AR on 7/10/08 7:23am
Msg #254733

Yikes! And I thought AR was the worst... n/m

Reply by WDMD on 7/10/08 7:26am
Msg #254734

Re: Problem in Ohio is......

" I cannot notarize someone signing as a POA or and Authorized signer of a Corp without personally verifying by seeing documentation that they have the authority to sign in that capacity."


Wow, I wouldn't want to have to make the determination if someone has a valid POA. Wonder what would happen if the notary refused a POA signer when in fact they had a valid POA or vice versa. Seems almost like your SOS is putting you in a position of judge, determining validity of a legal document.

Reply by PAW on 7/10/08 7:33am
Msg #254735

Not a problem in FL, but ...

The Florida Governor's Reference Manual for Notaries, as well as the statutes themselves, provide clear and concise instructions for handling document signers in an authorized capacity, such as Attorney-in-Fact, Trustee, etc. However, marital status is not a capacity, but a status and as such a notary typically cannot and does not certify that status. But, the notary certificate may include additional items over and above the required elements as prescribed, so the inclusion of "husband and wife", "single man", "unmarried woman", etc. as shown in the vesting portion of a mortgage, can be included in the notarial certificate if the notary is satisfied that the status is correct. Why? Because the signer of the document is certifying that the information is correct. So if the mortgage or deed states "John Doe and Mary Doe, husband and wife", then the signers are attesting to the fact and acknowledging it.

If the document does not state a marital status, then the notary should cross out the status in their notarial certificate because there is no basis of fact to the statement.

---------------------------------------------------------------------------
I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice.

Reply by John_NorCal on 7/10/08 8:20am
Msg #254740

Re: Not a problem in FL, but ...

California used to allow this years ago, but it's now cut and dried, we do not notarize according to status or capacity. Our notarial language covers it all ".............. in his/hers/their authorized capacities." Any language attesting to marital status can be covered in the granting clause of the deed.

Reply by Dennis D Broadbooks on 7/10/08 10:44am
Msg #254748

Paul...

...referencing your statement: "if the notary is satisfied that the status is correct"....how do you know with any degree of certainty two individuals are married? Even if they showed you their marriage certificate that doesn't mean they didn't get divorced yesterday. Missouri allows me the leeway, if I choose, to include "status" (I oftentimes use "status" & "capacity" interchangeably as I believe they mean essentially the same thing) but because there's no way in my mind I can firmly determine a marital status exists my preference is to strike that language from the Notary certificate.

Reply by PAW on 7/10/08 1:16pm
Msg #254769

Re: Paul...

Please note that I said if the document contains the statement that they are married, and the signers acknowledge the fact, then that is all the notary needs. The onus is on the signers. As I also said, if the document does not contain the statement, then it should be stricken from the notary certificate.

It's just like someone signing as Attorney-in-Fact. Under Florida statutes, we simply take the signer's word for it. We require no proof, as we are not certifying capacity or status, only identity and that the notarial act, including positive acknowledgment (recommended to be verbal) by the signers.

Reply by BrendaTx on 7/10/08 8:36am
Msg #254743

Let me put it like this...I don't strike it.

The information about the marital status is "surplusage". My "best practices" source says to provide separate short acks for each individual to keep things neater in the event the document is signed at two different times. (That's my practice in doing doc prep.) However, the language about marriage is just like I said, extra words. No harm in them, just don't need them as the notary is identifying the individual.

Reply by Julie/MI on 7/10/08 7:43am
Msg #254737

What came first, the recording laws or the NNA notary?

I just sit here, dumbfounded when I read these posts.

I don't know Ohio notary laws nor am I going to look them up.

Something tells me the laws are not like CA's in that you cannot notarize capacity. Do you think any of the Ohio title companies closing departments have been wringing their hands over this at any time in Ohio's history?

Maritial status is a necessary evil in some states for dower/homestead laws. The legislatures that devise these laws don't walk the walk and don't have a clue about checking recording laws when they make notary laws.

Is this something new that you have begun to do or something you have done all along?

The mighty notary block is propeganda from the NNA.

My state does allow capacity and I have marital status in my acknowledgement every time I notarize a document relating to real estate. I also don't require to view the marriage license. this is the way it's been done and I would caution anyone about using another states law or I suggestions from the "organization."

I recently admit to making a mistake on the date of a mortgage, I put a 6 (June) instead of a 7 (July). Title called and asked if they could change it and I said by all means and thank you for doing so. No big deal. Not fraud, just merely changing a typo.

Reply by dickb/wi on 7/10/08 11:09am
Msg #254755



" saying I altered a "legal document" without authorization."

roger, my sources, "notary law institute" and wi SOS tell me that the notary block is NOT a part of the document, but a document unto it's self......the notary block is totaly the realm of the notary, and a TESTAMENT UNDER OATH that what is contained therein is the truth.......i will not testify to things that i have no proof of.......what if they got divorced since title was updated......what if they were listed as husband and wife on the title but no one ever took the time to check the marriage records.....and on and on.....i do exactly what you did and have done many battles with title co's over it but they are still sending me business....i have even had them call our sos and they were told i was right......our manual by the way is silent on the issue.......

I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN THE STATE OF WISCONSIN AND MAY NOT GIVE LEGAL ADVICE. [i am however a wi licensed real estate broker and do give limited real estate legal advice.]

Reply by sue_pa on 7/10/08 12:03pm
Msg #254760

or what about the Quaker couple who told me they've been married for +/- 25 years according to Quaker custom - they stood on a street corner and announced to 3 strangers they were husband and wife. Who am I to say whether or not they are "legally" married?!?!?!? I sure wonder when it's time to collect spousal benefits later down the road what will happen.

What about all those who say they are 'common law' (that's the term they all use). Not in PA - I forget the actual court ruling details but it was in relation to the plane crash in PA on 9/11.

Again, it doesn't matter to me whether it's in the notary block or not - but I never would attempt to qualify anyone's marital status in any other instance.

Reply by SharonMN on 7/10/08 4:21pm
Msg #254786

Flip side: in MN, if they are husband and wife, the ack must contain the words "husband and wife" - I have to write it in all the time.

The notary certificate is the NOTARY's business and should be edited as you see fit to comply with local notary laws.