Posted by aurelio/FL on 3/29/10 12:02pm
Msg #329431

Acknowledgment "and did take an oath"?

I come across acks lately that have "and who did take an oath" at the end. What is the person supposed to swear to with an acknowledgment? I don't understand what the cert. is asking for? I did search on orange button and found discussions about when it says "who did NOT take an oath" but could not find out what to do when it is an acknowledgment that says "and who did take an oath". The FL handbook says nothing about it either. Please help -tx

Reply by PAW on 3/29/10 12:22pm
Msg #329432

If the document requires an oath, because the content of the document says so, not because the notary certificate says so, then a jurat must be used. FL Statutes §117.03

If the document has an acknowledgment, and a jurat is not required, simply strike the "who did take an oath", or insert "not" between "did" and "take".

Remember, the certificate is the certification that you, the notary, performed some notarial act, be it taking an acknowledgment or giving an oath.

Look for key words in the document to determine if an oath is required: "sworn by", "under oath", "deposes" and "affiant". (There are many more clues to what type of notarial act is required.) If you cannot determine that an oath is required, then the author, custodian or recipient of the document must tell you want notarial act is needed. Then you match the appropriate certificate to the act. If an acknowledgment is what's needed, then the certificate, with the correct wording, must be used certifying that you took the acknowledgment of the signer.

Reply by aurelio/FL on 3/29/10 12:28pm
Msg #329435

The doc is just a mortgage, so to my knowledge no jurat is required. But if the TC has added "did take an oath" then they must want me to administer an oath, right? But it is just an acknowledgment so what is the person supposed to be swearing? I don't get it.

Reply by PAW on 3/29/10 12:36pm
Msg #329438

No, a security instrument is acknowledged. No jurat is needed, so strike it out or add "not" to the phrase.

(Chances are the TC did "add" that, but it is part of the boilerplate or software they are using to generate the Mortgage.)

Many people, including those who develop the title software, don't know any better. They think that any time a notarial act is performed, the signer has to take an oath. Unfortunately, especially in FL, even the attorneys that approve these documents, don't know notary law and don't realize what the certificate implies.

Reply by aurelio/FL on 3/29/10 12:43pm
Msg #329439

On top of that, I have had things notarized personally where it gave the notary the choice (as in "and who did / did not take an oath" and different notaries have either left it as is or have selected "did take an oath" even though they did not administer one. The whole things is just pretty strange IMO.

Reply by Robert/FL on 3/29/10 12:46pm
Msg #329440

I *LOVE* this topic :-)

When taking an acknowledgment, an oath is not necessary. An acknowledgment is only an indication by the signer that the signature on the document is their own, and that they executed the document voluntarily, in their authorized capacity, for the purposes therein expressed. This declaration is not sworn to by the signer; it is simply declared or indicated.

Archie v. State (660 So.2d 348) discusses "acknowledgments under oath". The court in that case, in reference to an acknowledgment certificate containing the phrase "and who did take an oath", stated:

"An 'acknowledgment', even under oath, is nothing more than a confirmation by [the signer] that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct."

Thus, an acknowledgment certificate containing the phrase "who did take an oath" requires the signer of the document to swear that the signature is genuine. Administering such an oath does not make the acknowledgment any more or any less valid; it is, in all reality, completely unnecessary. In addition, you should specifically note that adding the phrase "who did take an oath" to an acknowledgment does not make the certificate a jurat, and it is therefore unacceptable for use on an affidavit or other document requiring an oath to be administered.

Reply by CopperheadVA on 3/29/10 1:04pm
Msg #329443

Re: I *LOVE* this topic :-)

Sometimes I encounter a document titled "Affidavit" however the certificate at the bottom is an acknowledgment (I'm talking a regular ack with no mention of "who did take an oath". I was under the impression that we the notary cannot choose the certificate. If there is an ack certificate printed on the document, then I assume the document preparer wants an ack. Robert, what would you do in that situation?

Reply by Sylvia_FL on 3/29/10 1:14pm
Msg #329446

Re: I *LOVE* this topic :-)

"I was under the impression that we the notary cannot choose the certificate. "

"pursuant to Florida Statutes §117.03 Administration of oaths - The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required"

So, if the document requires an oath (duly sworn in the body of the document, or similar wording to require an oath), we cannot take an acknowledgment. I replace the acks with jurats if necessary.

Reply by Robert/FL on 3/29/10 2:52pm
Msg #329462

Re: I *LOVE* this topic :-)

If I am presented with an affidavit requiring an oath, containing an acknowledgment certificate on the bottom, I personally would replace the certificate with a jurat, as this is not only permitted but required under Florida Statutes (s. 117.03) and case law (Pina v. Simon Pina, 544 So.2d 1161)

Reply by CopperheadVA on 3/30/10 4:39pm
Msg #329668

Re: I *LOVE* this topic :-)

I checked with my Sec of State notary division - in VA the notary cannot take it upon himself/herself to replace the ack with a jurat. I asked if we are to use the ack since that is what the document preparer has indicated that they want - I was told in that case I should decline to notarize since the affidavit requiring oath is inconsistent with the ack certificate, unless I could get direction from the document preparer to use a jurat. Or I could use a jurat if the document signer directed me to to so. All the while, I am not to direct the preparer or the signer in any way, as that would be UPL.