Posted by Robert/FL on 3/12/10 7:42pm
Msg #326998

An ack. "under oath" is *not* a jurat

I frequently see affidavits, that start with the usual, "Before me, personally appeared ____, who, being duly *sworn* deposes and says"... and the ends with "Acknowledged before me by ____, who did take an oath". At least in Florida, adding the phrase "who did take an oath" to an acknowledgment does NOT make that document a jurat and is therefore NOT acceptable for use on an affidavit.

Archie v. State (660 So. 2d 348):

"Archie's [**3] motion merely contains a certificate by a notary public that "the foregoing instrument was acknowledged before me this 22nd day of March, 1994, by Antonio Archie, who is personally known to his attorney and who did take an oath." An "acknowlgment," even under oath, is nothing more than a confirmation by Archie that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct."

Posting this for reference purposes - hopefully some of these document drafters will get the hint! Affidavits need a *JURAT*!!!

Reply by Sylvia_FL on 3/12/10 7:55pm
Msg #327000

Basic Notary 101 n/m

Reply by Marian_in_CA on 3/12/10 9:06pm
Msg #327010

Yeah but... it seems a lot of notaries can't get past

Notary 90.... Can't get to 101 until they pass 90.

Reply by Sylvia_FL on 3/12/10 9:13pm
Msg #327012

Re: Yeah but... it seems a lot of notaries can't get past

But Robert claims he is well versed in notary law.

Reply by Robert/FL on 3/12/10 9:17pm
Msg #327013

Re: Yeah but... it seems a lot of notaries can't get past

I am... but most notaries are not. Sorry for trying to post something helpful!

Reply by Linda_H/FL on 3/12/10 9:21pm
Msg #327015

Wow....

"I am... but most notaries are not."

Rather pompous, don't you think?

Reply by Robert/FL on 3/12/10 9:22pm
Msg #327016

Re: Wow....

No. I *am* well versed in notary law, despite what anyone here may think. Just because I like to debate and discuss obscure topics doesn't mean I don't know what I'm doing.

Reply by jba/fl on 3/12/10 10:33pm
Msg #327042

Re: Wow....

Oooooo - no room for picking anything new up?

Reply by Sylvia_FL on 3/12/10 9:26pm
Msg #327017

Re: Wow....

"Rather pompous, don't you think"

has a high opinion of himself. hate to see it when he comes crashing down to earth as he will eventually.

Most notaries are well versed in notary law. Signng agents more than most as they deal with notarizations on a daily basis.

Reply by Robert/FL on 3/12/10 9:30pm
Msg #327018

Re: Wow....

I deal with notarization on a daily basis and I am not a signing agent. You think I have a high opinion myself? Whatever. I'm not the one masquerading myself as a "Certified Notary Instructor" when I only *work for* an approved education provider.

Reply by Marian_in_CA on 3/12/10 9:32pm
Msg #327019

"I deal with notarization on a daily basis..."

Yeah, so do most of us.

And many of us are far more knowledgeable about Notary law than lawyers... and even some of the people at the SOS's offices.

We gain it through experience on a daily basis.

Reply by Sylvia_FL on 3/12/10 9:42pm
Msg #327020

Re: Wow....

" I'm not the one masquerading myself as a "Certified Notary Instructor"

Hmmm the stamp I was issued to use when I taught classes stated "Certified Notary Instructor" and I did have to be certified as in instructor. Maybe you should take it up with the "approved education provider"

Reply by MichiganAl on 3/13/10 6:31am
Msg #327062

International Society of Florida Commissioners of Deeds??

Sorry, who's the one masquerading? Man you really are a blowhard and a phony.

Reply by Robert/FL on 3/12/10 9:18pm
Msg #327014

If this was "notary 101" it would be addressed in the manual n/m

Reply by jba/fl on 3/12/10 10:32pm
Msg #327040

Re: If this was "notary 101" it would be addressed in the manual

These hybrid notary blocks are a fairly new creation by someone who thought it was too simple and plain and decided they needed to dress it up a bit, bungling the whole thing in the process.

The Governor's Manual can't possibly address every little variation that might possibly arise, especially when it has been so long since they updated that little tome that is in need of just such.

Crack your whip over that office Robert, get them on the ball to update the Manual and then make sure every current notary has a copy of it, or gets the news that there is an update available. Since we are in such high tech days, not exactly on the cutting edge, I would think that all notaries now have an email address to which a notice can be sent.

Reply by PAW on 3/12/10 7:57pm
Msg #327001

>>> Posting this for reference purposes - hopefully some of these document drafters will get the hint! Affidavits need a *JURAT*!!! <<<

You mean you are directing the document author and/or custodian what form of certificate needs to be on a document. Well, wouldn't you consider that to be UPL?

Reply by Robert/FL on 3/12/10 8:01pm
Msg #327002

No, as you well know in Florida affidavits requiring a person to be "duly sworn" must have a jurat. It is not UPL in Florida to strike an acknowledgment and replace it with a jurat in this circumstance, but if the document drafters would get it right to begin with we wouldn't need to go through the trouble.

Reply by PAW on 3/12/10 8:04pm
Msg #327003

Robert, you need to remember that this forum is read by notaries in all 50 states, not just Florida. So if you post something specific Florida, then you should annotate that your comment pertains to Florida only.

Reply by Robert/FL on 3/12/10 8:08pm
Msg #327004

If you look at my original post, I did say "At least in Florida..."

Also: "Where an affidavit is called for, an acknowledgment will not suffice." (Pina v. Simon-Pina (544 So. 2d 1161))

Reply by PAW on 3/12/10 8:22pm
Msg #327005

That case may or may not be universally accepted. Granted, in the first paragraph you limited it to Florida, but the final sentence, by structure and syntax, was a global exclamation.

I agree that here, in FL, at least we have a statute (F.S. 117.03) that specifically states that we cannot take an acknowledgment of execution in lieu of an oath if an oath is required. I'm not aware of any other states that have such a statute. There may be some case law in other states, but I'm not going to look for it.

Reply by Jack/AL on 3/12/10 9:44pm
Msg #327021

Re: Thanks for the info

I appreciate the post, Robert. I learn from others, especially when Aabama does not require training for Notaries Public, and has very minimal, outdated legal guidelines.

Reply by Sylvia_FL on 3/12/10 9:51pm
Msg #327024

Re: Thanks for the info

Jack
Please remember that when any of us post any requirements for notarial certificates we can only refer to what our state allows. Alabama is like a lot of other states, no informative handbook, only the "Code" to go by. It is always best to check with your secretary of state's office for notarial questions. I think the Alabama code goes back to 1975.

Reply by cawest/PA on 3/12/10 11:15pm
Msg #327052

and AGAIN thanks to a closing

I missed all the fun ... thanks guys LOL

Reply by Laura_V on 3/13/10 9:47am
Msg #327087

In WA there is and boy, was I surprised when I 1st saw it

1 notarial certificate here in WA is
Acknowledgement in a Representative Capacity.

Signer has to be given oath and agree that they do indeed have the authority to represent something/somebody - usually an entity.

And that they truly are the President, whatever, of the entity.

I handle these pretty much weekly. Put 30 more blanks in briefcase yesterday.


And I have seen Deeds with Ack wording and oath wording many many times re Hawaii real estate.


Whodda thunk?

Reply by Laura_V on 3/13/10 9:51am
Msg #327088

wait wait - NOW I get it Robert. You're right even

in WA and HI.

Thanks for heads up!



If it Acks like a duck, then its an Ack

AAAcck even sounds like a duck, eh?

Reply by BrendaTx on 3/13/10 11:15am
Msg #327110

Re: In WA there is and boy--what a difference a state makes

In Texas notaries are not to be concerned with proof of the representative capacity of the signer. We don't have such an animal as an Acknowledgement in a Representative Capacity. If there was such a beast, it would be a document stating such and then an ack or jurat attached to it.

Notaries can indeed complete a notarial certificate which identifies representative capacity in Texas.

It is presumed that if the signer is signing in such capacity that there is prima facie evidence by their signature that they claim and state that such is true. No need for an additional ack to verify it. The notary does not need evidence of anything (corporate minutes, so forth) except the signer's identity.

Interesting.

Reply by PAW on 3/13/10 12:15pm
Msg #327115

Re: In WA there is and boy--what a difference a state makes

The same here in Florida. An ack for a signer in a representative capacity, should state "who represented to me that they are acting in such-n-such capacity" but, alas, it is assumed that when a name appears as "John Doe, as chairmen of the board for such-n-such company" that the signer is authorized to act in that capacity. Notaries are not required to prove the representation.

The basic syntax, as illustrated in our manual is:

The foregoing instrument was acknowledged
before me this __________ day of
_____________, 20__, by (NAME OF
PERSON) as (TYPE OF AUTHORITY, e.g.
OFFICER, TRUSTEE, ATTORNEY IN FACT)
for (NAME OF PARTY ON BEHALF OF
WHOM INSTRUMENT WAS EXECUTED).

The real estate statutes show examples of statutory short forms of acknowledgments too. Specifically:

For an individual acting as principal by an attorney in fact:

The foregoing instrument was acknowledged
before me this (date) by (name of
attorney in fact) as attorney in fact, who is
personally known to me or who has produced
(type of identification) as identification on
behalf of (name of principal).


For a corporation:

The foregoing instrument was acknowledged
before me this (date) by (name of officer
or agent, title of officer or agent) of (name of
corporation acknowledging) , a (state or place
of incorporation) corporation, on behalf of the
corporation. He/she is personally known to
me or has produced (type of identification) as
identification.


By any public officer, trustee, or personal representative:

The foregoing instrument was acknowledged
before me this (date) by (name and title
of position), who is personally known to me or
who has produced (type of identification) as
identification.


Fortunately, the statutes for Florida notaries does not mandate a specific content or syntax of a notarial certificate. Instead, the wording in the statute is "[a] notary public must use a certificate in substantially the following form in notarizing." And "[t]he specification of forms under this subsection does not preclude the use of other forms." So as long as we get the required elements in each certificate, we are allowed, and encouraged, to annotate the certificate for clarity. For example, when a document is translated by someone before it is signed and then notarized, the notary "may wish to add a statement in your notarial certificate that you have complied with this requirement of the law: 'I further certify that the nature and effect of the document was translated for (name of signer) by (name of translator) prior to notarization.'"

(Note: F.S. §117.107(6) states that the nature and effect of the document must be translated into a language that the person does understand. The law does not specify that a written translation is required; therefore, an oral translation is sufficient.)