Posted by 2SA4NC on 6/27/09 12:59am
Msg #293773

Affidavit without oath

I have a closing where all the Affidavits have the statement of:
"and who did not take an oath."

How would you handle this?

How often dose this happen? Its a 1st for me in 4 yrs.

TIA

Reply by Shoshana Roller on 6/27/09 1:54am
Msg #293774

If you look at the verbiage carefully, it's an acknowledgement. If that isn't acceptable verbiage in your state, you should of course use a loose ack that is.

Reply by Bob_Chicago on 6/27/09 8:16am
Msg #293785

I have seen these before. If compliant with your State's

requirements, and if they took an oath, just cross out the word "not" and initial.

Reply by Kate/CA on 6/27/09 2:58pm
Msg #293811

I wouldn't cross that out ..

It is park of the document. Just look at the certificate and it is probably ACK.

Reply by TRG_wy on 6/27/09 6:01pm
Msg #293826

Re: I wouldn't cross that out ..

It is "my" part of the document and I can and have done just as Bob suggested. I have more often seen "...who has/has not ...." making my selective option more obvious.

Reply by Shoshana Roller on 6/27/09 7:33pm
Msg #293832

It's an ack.

By crossing it out, you're making the certificate a jurat. That could be construed as UPL!

Reply by Robert/FL on 6/27/09 8:03pm
Msg #293834

Re: It's an ack.

No, I see this all the time, where at the top of this document it says "Before me, the undersigned authority, personally appeared ........, who, being first DULY SWORN, deposes and says:", and then the bottom has an acknowledgment certificate that says "and did not take an oath". If they didn't take an oath then it wouldn't be an affidavit, and it wouldn't say that the was "DULY SWORN". Unfortunately people don't seem to realize what a mess this is.

Granted, Florida Statutes give notaries specific instructions that they are not to take an acknowledgment instead of an oath if an oath is required. Since affidavits by their very nature require an oath, we have authority to cross out the acknowledgment and use a jurat. That's not UPL, it's our compliance with statute. Although I understand in other states they don't have that requirement; however, the top portion of the document stating "Before me, the undersigned authority..." is part of the notarial certificate, and if you say that the affiant was duly sworn at the beginning, but then at the end say "and did not take an oath", you're contradicting yourself.