Posted by Robert Koehler on 5/19/09 9:45pm
Msg #289223

Someone changing your certificate

I recently notarized a warranty deed, and the pre-printed certificate stated "The foregoing instrument was acknowledged before me...... by ___, who did take an oath". Well, first of all, this was prepared by an attorney, and the attorney should have known that an oath would require the wording of "Sworn to and subscribed". Even further, he should have known that a deed should have an acknowledgment with no oath taken. But, I am not an attorney, and so could not give that advice to the clients.

Anyhow, I actually did not administer an oath. I didn't even realize that the certificate had that wording in the document until after the fact. So yes, it was an error on my part, that I should have struck through the wording.

But, that attorney contacted my boss (who is also an attorney), and asked HIM for permission to strike out the wording about the oath, because it couldn't be recorded (deeds in Florida can not have an oath taken, it must be an ack.) That attorney should have contacted ME, not my boss. And if he had contacted me, I would have said no. But I looked up the recorded deed, and sure enough, that attorney did in fact cross out the wording about the oath and put his own initials next to it... he wasn't even a signer anywhere on the document!

It just makes me mad, that even though I should have stricken through that wording, and it was my error, I don't think someone else has the authority to correct my error without my knowledge. Any thoughts on this?

Reply by Marian_in_CA on 5/19/09 10:17pm
Msg #289232

I would report him to the State Bar ASAP. He's an attorney and he should know better than to do such a thing.

It sounds to me like you boss told him it was ok. If so, your boss is stupid, too...

or it's more than likely that neither of them understand your state notary laws.

BTW... the notarial certificate wording is YOURS, not the attorney's. You have the right (although FL notaries might want to pitch in here) to tell someone you can't use the wording they gave you... and you can get around the UPL monster asking pointed questions about the type of certificate. For example, "This certificate's wording is convoluted. It can either be an acknowledgment or a sworn statement, but not both... I need you to tell me what it should be." Something like that may have fixed the whole ordeal.

Of course... that's one of the reasons I like CA's strict wording requirements. As much of a hassle as it can be, telling people, "Hey it's state law..." is a good way out of all kinds of messes.

But yeah... I'd keep a copy of that deed and call the state bar and tell them what this attorney did. He really used his OWN initials? In California, that might get him in to some serious hot water.

Maybe Paul can define it more for FL.... but as far as I've ever seen.... nobody should "correct" a notary's certificate after it's finished, not ever.

Reply by BrendaTx on 5/20/09 7:02am
Msg #289258

*In California, that might get him in to some serious hot water. *

Well...that's a thought but in Texas it would not have a lick of effect, IMHO. Further, I'm of the opinion that the less legal-wrangling-attention notaries bring to themselves the better for the signing agent. Lots of dollars flow through the collective hands of those in the SA business and around it. Keep trying to show how "wrong" lawyers are and I think we'll find out how "wrong" they are not. They could, in some states, possibly take this business right away from notaries if notaries pit themselves against the legal community...I'm just saying.

It's like getting in an ink war with the New York Times. Pointless. And, you'll get buried.

The notary (orig. poster) didn't do anything wrong. He should just keep doing that. For me, I'm not going to start blowing whistles unless I see actual fraud.

As sort of an aside...I just heard the other day from a very credible source that there's a law in Texas that says you don't just threaten to report someone regarding their licensing to get something done. That's blackmail, sort of. If there's something wrong, you better report it or darn sure don't put the threat into the public stream of discussion. Not saying that's what's done here! But the theme of this is, "Put up or shut up." If there's a definite wrong, correct it...don't push to get things done your way under threat of reporting.

Reply by WDMD on 5/20/09 7:25am
Msg #289264

" Keep trying to show how "wrong" lawyers are and I think we'll find out how "wrong" they are not. They could, in some states, possibly take this business right away from notaries if notaries pit themselves against the legal community...I'm just saying.'


That makes me think of the discussion yesterday from someone about how they do not have someone sign a PG County affidavit if they are in another county in MD. I know that is the reason some local title companies will not use outside closers. They don't always get the documents they sent out back because some closers decide they know better then the title company.

We used to get tired of notaries telling us we did not need 2 of something or some document was for something else. We finally had to just use our own people, lot less headaches.

Reply by MW/VA on 5/20/09 7:56am
Msg #289266

Good point, Brenda. As a notary we are required to follow our state's notary laws, period.
It is not our job to interpret, enforce, etc.--this is UPL. IIMHO, the more problems we create we are only creating for ourselves.

Reply by BrendaTx on 5/20/09 6:52am
Msg #289256

*"The foregoing instrument was acknowledged before me...... by ___, who did take an oath". *

You are in Florida, but in Texas, that notary cert would be fine and the recorder would accept it The recorders are not required to police notary certs here. (My experience only, not giving legal opinion because I don't have one.)

Someone else said to report these guys to the state bar. Good luck with that....if you decide to do that. I think it would be asking for trouble that would lead to nothing productive. If it were me, I'd just move on.

Reply by Linda_H/FL on 5/20/09 8:45am
Msg #289273

Robert...I agree with you it's wrong, and I agree with you

he should be reported....but what will it accomplish? In the end, probably nothing - the deed will still be of record with his initials in your cert and you, fellow notary, will be in the unemployment line because don't think for one minute that that attorney won't contact your boss. Unless, if course, you can file the complaint under the veil of anonymity which, with the Bar Association, I don't think you can do.

MHO

Reply by Becca_FL on 5/20/09 9:12am
Msg #289275

Brenda & Linda are correct.

The fact is that this happens everyday and nobody seems to care. Let it go.

Reply by PAW on 5/20/09 9:54am
Msg #289279

Re: Brenda & Linda are correct.

Besides that, it is not a crime to alter a document, including a notarial certificate unless fraud or some other illegal activity is perpetuated.

In Florida, a notary cannot alter the document, including their certificate after it is signed by anyone. (F.S. 117.107(7) and (8))

Reply by Linda_H/FL on 5/20/09 10:00am
Msg #289282

Re: Brenda & Linda are correct.

Isn't the altering of a completed notarial cert by someone other than the notary an illegal activity in and of itself? ?!! It's my understanding the notarial certs are the notary's exclusive domain - if anyone else alters that cert, possibly rendering a previously correct cert incorrect, it's the notary's hide on the line and the onus is on them to prove it was someone else who created the invalid cert..

If it's not illegal, it damn well should be!! My Not So Humble opinion....

Reply by Marian_in_CA on 5/20/09 10:50am
Msg #289290

Re: Brenda & Linda are correct.

I think the big loophole in just about all the laws is that alterations need to be done with fraudulent intent. Clearly, from the situation described it wasn't exactly intentionally fraudulent.... but I'm with you Linda, it should be illegal to alter a certificate period, with no regard to intent.

If I get pulled over for doing 85 MPH on a downhill slope where the speed limit is posted at 45 because I wasn't paying attention to my speed... I'm probably still getting a ticket whether I "meant to" or not. Goodness knows I've caught myself doing it completely unintentionally before.... but hey, I was speeding... and whether it was intentional or neglectful, either way I was not obeying the law. Ticket well deserved.

That's what I don't like about the codes that state it must be intentional. Proving intent is not easy.

In this case, I think it's just plain ignorance... but it doesn't make it right. I know that nobody will do anything about it... but it doesn't make it right. The problem is that people don't unerstand what a notary does, and even state governments don't put enough attention on the role that we play. Too many people think we just stamp, sign and go without understanding what our job really means. It's actually pretty sad.

Reply by dickb/wi on 5/20/09 11:41am
Msg #289299

imho linda you are right...according to the......

notary law institute the notarial block is not a part of the document but a dcument unto itself and the undisputed :domaine of the notary".......it is a notarys testament under oath that what is in the notary block is true......

Reply by BrendaTx on 5/20/09 10:59am
Msg #289292

Re: Brenda & Linda are correct.

*Besides that, it is not a crime to alter a document, including a notarial certificate unless fraud or some other illegal activity is perpetuated.*

Having not researched it myself, I can't say I "know" it is correct but I'll go along here with Paul...and, I'm putting the BrendaTx Seal of Common Sense on it.

Reply by MikeC/NY on 5/20/09 1:11pm
Msg #289307

Re: Brenda & Linda are correct.

Brenda -

This is totally apropos of nothing, but I found something today you might get a kick out of reading...

http://tinyurl.com/pedwlf

Reply by BrendaTx on 5/20/09 1:29pm
Msg #289309

Kick rec'd Mike - funny! n/m

Reply by Korey Humphreys on 5/20/09 11:21am
Msg #289293

In Massachusetts.....

the attorney could be charged with a crime.

==========================
M.G.L. c. 267 s. 1: False or forged records of Notary Public:
Whoever, with intent to injure or defraud, falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of a clerk of a court, public register, notary public, justice of the peace, town clerk or any other public officer. . . shall be punished by imprisonment in the state prison for not more than ten years or in jail for not more than two years.
==========================

I'm not sure how they would prove ". . . intent to injure or defraud". But then again, I wouldn't be the prosecutor.

Reply by Linda_H/FL on 5/20/09 6:33pm
Msg #289358

What kills me is this attorney was

stupid enough to use his own initials on the correction!!

Reply by Robert Koehler on 5/20/09 9:03pm
Msg #289386

Re: What kills me is this attorney was

I don't plan on reporting the attorney to the bar; I've actually spoken with the guy and he's a nice old man. BUT, if he had a problem with the notary certificate, he should have contacted ME for permission to amend it. And of course, I would have told him NO because you can't amend a certificate. I would have told him to draft a new one and have it re-notarized (which wound up happening anyway because the legal description was wrong in the deed).

I believe that the notary certificate should be my certificate and I should have supreme authority to make changes to it. Like I said, it was an error on my part to leave the "oath taking" language in there, but it was my error and no attorney should have the authority to correct it.

By the way, this was not in connection with a signing agent job - this was during regular business hours.