Posted by Robert/FL on 1/14/10 7:03am
Msg #317932

Verbal taking of acknowledgment

I haven't seen this plainly discussed before - how many of you, when taking an acknowledgment, do you actually ask the signer "Do you acknowledge that you have executed this instrument voluntarily?". Many notary associations say this is absolutely necessary; NNA says it isn't necessary if the document is signed in the notary's presence.

For me, it depends on the situation. If a friend or client comes to me and says "Can you please notarize this for me?", and they willingly present the document for notarization -and- sign the document in my presence, I do not take a verbal acknowledgment. The only times I *do* take a verbal acknowledgment is if it is hard to determine whether or not the signer is willing, or the document has previously been signed, or I don't know the person very well.

Curious to know what others' exchange of words are for taking acknowledgments.

Reply by PAW on 1/14/10 7:25am
Msg #317935

You bet. As recommended in the Florida manual on page 12, "To take an acknowledgment, the document signer must personally appear before you, the notary public, and declare that he or she has signed the document voluntarily." Without either a verbal or written declaration, how would the notary ensure the signer is signing the document willingly and without coercion? Just because someone presents you with a document, signs in your presence, does not guarantee that they have met the requirements as outlined in our manual and statutes.

Reply by Shelly_FL on 1/14/10 8:10am
Msg #317938

When there are upwards of 12 acknowlegments/jurats in a refi package, I will preface them all with a brief explanation of the difference and swear them in, so to speak.

I had a case last night of a gentleman that had been Baker Acted and family and friends were assisting him in signing a DPOA for business purposes.

I asked that they give him and I a moment alone, so that I may determine one, if he understood the document and two if he was willing to sign. He made a phone call to his layer, as a result and did sign his document.

Reply by parkerc/ME on 1/14/10 9:54am
Msg #317957

If it is a loan signing with numerous docs to notarize, I give them an oath first thing and also include wording "do you acknowledge that you sign of your own free will for the purposes therein intended". If it is an acknowledgement that has already been signed, I do the same . . did you sign this of your own free will for the purpose(s) therein intended". But, yes, in some way or other, always get a verbal response.

Reply by Marian_in_CA on 1/14/10 10:51am
Msg #317968

I always ask in some form or another. Sometimes I do it casually in the course of conversation. If they've signed it before coming to me, then I am more formal about it. If they sign in front of me, I try to discern that they understand what they're signing by asking the nature of the document. That's usually enough for me in those cases. If we are present when they sign, it's fairly obvious that the person intends to execute the document.

In CA acks, we're only certifying that they acknowledge signing the document. That's it. Forced or not... that's not really part of it. They either signed it or they didn't. At least... that's what it says in the handbook.

In fact, in CA... by the letter of the law... if we're asked to notarize a signature and proper ID is present, we have to do it.

Of course, in practice... the safeguard that we have is that we need to record the type of document in our journals. If the person can't tell you the general purpose of the document, it is suspect... but if the person signing insists, there's nothing we can do but notarize and notate the journal in detail. If the person is so out of it that they don't even know how or where to sign (I've had those, too) then I take that as an obvious inability to acknowledge their signature. Usually, this is with sick people or seniors with dementia. I would never notarize on the insistence of anyone BUT the signer, though.

Two weeks ago, I had a man who was illiterate just insist that I notarize his signature on a document. What he told me about the document wasn't exactly what I read... but the differences were somewhat minor. The nature of the document was accurate. I wasn't comfortable with it because this man was clearly being duped. Thing is, I couldn't advise him on that... so I just notarized his signature, as he insisted, and wrote down everything in my journal. I called the SOS on it, and they told me that what I did was right in line with State law on the matter. The signer had proper ID and his request was legal. So, I'm fine with it.

Reply by Sylvia_FL on 1/14/10 11:02am
Msg #317972

How can you fill out a notary certificate saying the person acknowledged that he/she signed the document if the signer does not acknowledge before you that he/she signed it?

No matter the situation, whether the signer is a friend or a client, they must acknowledge that they signed the document.
This is basic notary 101, it is not brain surgery.

Reply by Robert/FL on 1/14/10 12:15pm
Msg #317980

"...the person whose acknowledgment is taken must *in some way* indicate to the officer that the execution of the instrument is his act and deed." (1 Fla Jur, Acknowledgments §11)

The phrase *in some way indicate* does not limit the ceremony to the notary formally asking the signer to give an acknowledgment. If a person very willingly and happily executes a document in my presence, that, in my opinion, is a sufficient *indication* that the execution of the instrument was the signer’s voluntary act and deed.

Notice that, at least in Florida, the term “acknowledgment” is not defined by statute. The courts have upheld, “In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” (State v. Hagan, 387 So.2d 945). The courts have also stated that the term “acknowledgment” is a term of common usage, and can be given its plain and ordinary meaning (State v. Sailer, 645 So.2d 1114). In its ordinary sense, I can “acknowledge” anything without formally declaring it. For example, if I wanted to acknowledge that I am a notary public, I could go up to someone and show them my commission certificate without saying anything. In my opinion, that is an acknowledgment in the plain meaning of the word.

An acknowledgment is not an “unequivocal act” like administration of an oath as defined in Youngker v. State, 215 So. 2d 318. There is nothing in any statute or case law, at least in Florida, that clearly defines the taking of an acknowledgment as a verbal exchange.

"If a document is willingly signed in the presence of the Notary, this can serve just as well as an oral statement of acknowledgment.” (Fla. Notary Law Primer, 12th ed., p. 23)

Reply by PAW on 1/14/10 6:10pm
Msg #318035

The Florida Governor's Office, Notary Section has issued the following definition for 'Acknowledgment': "A formal declaration before an authorized official (a notary public) by a person signing an instrument that such execution is his or her free act and deed. The term also refers to the notary’s certificate on the document indicating that it was so acknowledged." (Governor's Reference Manual for Notaries, 2001, pg. 72) This definition is the same as those found in many, if not all, law dictionaries.

You cited State v. Hagan, but neglected to complete the paragraph which concludes, "Moreover, a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term. See Gardner v. Johnson, 451 So.2d 477, 478 (Fla.1984)."

Dictionaries used are many, but most refer to Black's Law Dictionary, at a minimum, for common word definitions not defined by statute.

IMO, the operative word in these definitions is "declaration". Further, no one stated that the declaration needed to be verbal, but only that a declaration be made. (Even though your initial post referred to verbal acknowledgments.)

Reply by Linda_H/FL on 1/14/10 12:36pm
Msg #317983

I always have them state it verbally...

Per the Governor's manual:

"To take an acknowledgment, the document signer must personally appear before you, the notary public, and declare that he or she has signed the document voluntarily"

Key word - "declare" - IMO this means they must verbally state their voluntary signing - unless they're mute, in which case they need to find another way to "declare" their voluntary status. Just presenting the document and signing away is not a DECLARATION of voluntary signing.

As for this "If a document is willingly signed in the presence of the Notary, this can serve just as well as an oral statement of acknowledgment.” (Fla. Notary Law Primer, 12th ed., p. 23)" - Notary Law Primer - from NNA - flies directly in the face of our state's procedures - no credibility whatsoever....