Posted by Hugh Nations Signing Agents of Austin on 5/27/10 12:21pm
Msg #338536
Nagging questions
1) When an affidavit is **preceded** by a venue, i.e., "State of Confusion, County of Puzzlement," and that venue is the venue of the property but differs from the venue of execution. should it be changed to the venue of execution? This question has nothing to do with the venue declaration on the notarial certification.
2) When an affidavit includes introductory wording to this effect: "Before me, I.M. Dummass, a notary public in and for the State of Confusion, personally appeared B.A. Goodeguy, who, under oath, deposes and says:" who initials any corrections to the venue declaration in (1) above? Is it a) the notary; b) the borrower/signer; or c) both?
I welcome opinions and speculation, but please provide some rationalization for them. Even more welcome would be some solid citations.
PAW?
| Reply by Michelle/AL on 5/27/10 12:32pm
Msg #338538
LOL @ the last sentence..."PAW?"
He is one of the few who can give you the facts and leave his personal opinion out of it. He also has a lot of credibility. (I don't say this to slight anyone else on the board.) It's just that I find PAW frequently gets called on by name in these situations. It makes me smile. It's "name calling" at its best.
"Say my name; say my name".
| Reply by Hugh Nations Signing Agents of Austin on 5/27/10 12:48pm
Msg #338544
Re: LOL @ the last sentence..."PAW?"
I find PAW a fount of valuable information.
Need to know high unmowed St. Augustiane grass will get in August in full sun? Ask PAW.
Does the Empire State Building have a concierge? Ask PAW.
Is the speed of light ever a variable under any circumstances? Ask PAW.
Is my last ex-wife still terrorizing assorted males? Let us hope, for his sake, that PAW does not have that answer.
| Reply by Michelle/AL on 5/27/10 1:03pm
Msg #338548
LOL @ HUGH. So true. So true. n/m
| Reply by PAW on 5/27/10 2:22pm
Msg #338580
Re: LOL @ the last sentence..."PAW?"
>>> Need to know high unmowed St. Augustiane grass will get in August in full sun? <<<
According to Richard L. Duble, Turfgrass Specialist at Texas Cooperative Extension, St. Augustine grass should be kept between 2 to 3 inches in length. However, left unattended, and without soil supplement, the grass will grow as high as it needs to to obtain the necessary nutrients for sustaining it life.
>>> Does the Empire State Building have a concierge? <<<
I don't know for sure. (Ya got me!) However, prior to the Empire State Building being built, it was the location of the Waldorf Astoria Hotel. Complete with concierge service.
>>> Is the speed of light ever a variable under any circumstances? <<<
Not according to long time friend and confidant, Alfred E. Neuman. (You thought I was going to say Einstein, didn't ya?)
>>> Is my last ex-wife still terrorizing assorted males? Let us hope, for his sake, that PAW does not have that answer. <<<
I can only provide second hand knowledge on this subject. According to undisclosed sources, the answer is a profound maybe.
| Reply by BrendaTx on 5/27/10 7:46pm
Msg #338653
LOL @ the last sentence..."PAW?" I hate to say this but-
but I learned something from all of Paul's responses.
| Reply by Robert/FL on 5/27/10 12:37pm
Msg #338541
1) IMO, yes. With documents requiring an acknowledgment, such as deeds, some drafters put a venue at the top indicating the county where the property is located. But an affidavit is only a sworn statement; even if that statement involves real property, the appropriate venue is the one where the affidavit was signed.
2) IMO, the notary. The introductory wording is part of the notarial certificate, and is written in first person ("Before me, the undersigned authority"... that is the notary talking there). Since it's part of the notary's certificate, I see little reason for the signer to initial it also, although I suppose it can't hurt.
| Reply by BrendaTx on 5/27/10 1:25pm
Msg #338557
LOL, Robert - you and I have 2 different opinions...
exactly the opposite.
I think the message here is clear regarding top of the document venue is: Pick one.
| Reply by Robert/FL on 5/27/10 1:30pm
Msg #338558
I think it depends on the type of document
I have never heard of an affidavit containing a venue anything other than where the affidavit is being signed. That is just proper affidavit form IMO.
However, I have heard of *acknowledged* documents, such as deeds, mortgages etc., containing a venue at the top indicating the location of the property.
The difference is, depending on the affidavit form used, the entire affidavit is actually a notarial certificate if you read it closely. And, the venue immediately above the notarial certificate should indicate where the notarization is being performed. If the notary's certificate begins at the top, with the "Before me, the undersigned authority,..." wording, then the venue immediately above that wording should indicate where the affidavit is being signed.
JMO
| Reply by JanetK_CA on 5/27/10 5:37pm
Msg #338631
"The introductory wording is part of the notarial certificate..."
Not in *my* state! (And very possibly not in others, as well.) It may have been intended that way by the drafter of the document, but our state notary laws don't allow for that - ESPECIALLY if a jurat is in order. There is very specific wording required - no more, no less.
| Reply by jba/fl on 5/27/10 12:40pm
Msg #338542
Brenda/TX wrote a very good piece on just this. The upper part of the paper is for the property and the lower is the domain of the notary and where the feet are planted at the time of the notarization. If my block is prefilled and incorrect, I line through and initial and insert correct venue.
I could look this up for you, but you need to utilize your own searching capabilities once in a while instead of just driving by. LOL
| Reply by BrendaTx on 5/27/10 1:09pm
Msg #338550
Good rule of thumb...
A terrific property and lending attorney (who was also a notary and actually did give a flip about notary procedures and law) I worked for said to leave the top part of the document alone.
Always on deeds: The part at the top refers to location of property. Only customize the venue above the notary certificate.
The affidavit which has a venue at the top...Although I know it seems difficult to do to leave it alone if it is in a different county/state, it can also refer to a property location (Aff. of Homestead, etc.) so leaving that alone would be best practice. Affidavits may come with venue of court at the top if the affidavit would be used in a court. Whatever the case--leaving top part alone and simply inserting the correct venue above the notary certificate will always work and make the notary produce an accurate certificate. That's our domain. The practice also makes for a neater document. I understand how some may disagree, but I truly did get legal advice on it because I needed to know. And, I'm in Tx.
| Reply by Michelle/AL on 5/27/10 1:17pm
Msg #338554
Re: Good rule of thumb...
I appreciate you posting this again. Sounds like good advice. Sometimes I get a little carried away with crossing out and initialing. I'll take your advice.
| Reply by Hugh Nations Signing Agents of Austin on 5/27/10 1:18pm
Msg #338555
Re: Good rule of thumb...
This is based on what an attorney conveyed to you, Brenda?
| Reply by BrendaTx on 5/27/10 1:43pm
Msg #338560
That's correct.
Deeds can start out with a property venue at the top and that's pretty easy to figure out...they will be recorded in that county so no need to change the top venue; just the notary certificate venue.
Affidavits - We sent a lot of documents out of the county for signature to outlying small country banks which were giving financing on Brazos County property.
If the property referenced was in Brazos County, however, the top of the affidavit still said Brazos County; no matter where they were being signed. A notary venue would be inserted above the cert for the notary to complete if a difference in county was anticipated.
The law firm I worked for called it "the property venue" vs. notary venue.
No matter what is at the top, just make sure that the notary cert has the right thing on it.
Truth be told, I don't know if it makes a hill of beans, but since I took the time to get specific advice on it I'm going with it....my story...sticking to it.
| Reply by Robert/FL on 5/27/10 1:53pm
Msg #338561
Re: That's correct.
>>>they will be recorded in that county so no need to change the top venue; just the notary certificate venue.<<<
But isn't an affidavit in itself the certificate of a notary, that a person appeared before him/her and was duly sworn and made certain statements? And if the affidavit is a notarial certificate, shouldn't the venue immediately above the affidavit be the notary's venue?
| Reply by Linda_H/FL on 5/27/10 1:58pm
Msg #338563
Re: That's correct.
"But isn't an affidavit in itself the certificate of a notary"
No...the JURAT attached to the affidavit is the certificate of the notary...the Affidavit is the statement of the Affiant...not the notary's purview.
| Reply by Robert/FL on 5/27/10 2:02pm
Msg #338564
What if it starts with "before me, the undersigned..."?
That preamble wording is a part of the notary's certificate. I think it depends on how the affidavit is worded. When I draft affidavits, I draft them in first person, as if the notary is stating what transpired. In that case, the venue, IMO, must be the notary's venue, because the entire document is a notarial certificate.
I know you mentioned that you prefer your jurat to be a separate element to the affidavit, and I can only speak for the affidavits that I draft at work, but I would never draft an affidavit where the notarial certificate is a completely separate element. It just doesn't seem right to me. But, that's the way I was trained etc. Further affiant sayeth naught :-)
| Reply by Linda_H/FL on 5/27/10 2:07pm
Msg #338568
I don't care how it starts...
The Affidavit can start any way the drafter wants, stating before the undersigned officer, whether for formality or otherwise...the Affidavit is NOT the notary's certificate, which is what you said. The notary's certificate is the jurat, plain and simple. And yes, the Affidavit and the jurat are two separate things.
| Reply by Robert/FL on 5/27/10 2:09pm
Msg #338572
Strongly disagree
When an affidavit begins with the words:
"Before me, the undersigned authority, personally appeared John Doe, who, being by me duly sworn, deposes and says...
... that is written from the notary's perspective. "Me" refers to the notary.
Again, it depends on how the affidavit is written. I write affidavits as stated above. There is a difference between "Before *me*, the undersigned authority" and "Before the undersigned authority".
| Reply by Linda_H/FL on 5/27/10 2:13pm
Msg #338573
Okay..so we agree to disagree... n/m
| Reply by Robert/FL on 5/27/10 2:15pm
Msg #338576
Agreed. n/m
| Reply by BrendaTx on 5/27/10 7:12pm
Msg #338648
Re: Strongly disagree - Robert I just want to say that I
totally get it. I do understand what your point is on this.
I do see that the affidavit form you are talking about definitely lends itself to seem like it is part of the notary's domain.
That's why I also had difficulties adjusting my view to interpret this as I have stated it.
Like Hugh has concluded, I think that there's no good guiding light on this one. And, what do you do if something is not clarified by the SOS? You talk to a good lawyer. I've done that and I'm going with it. Even though he didn't say what I wanted him to, I chose to take value his legal opinion and accept it. And, that problem's solved for me forever.
Document preparers (attorneys, etc.) can put whatever venue statements they please at the top of an affidavit, but the venue WILL always be correct right above my notary certificate.
| Reply by Robert/FL on 5/27/10 7:44pm
Msg #338652
Especially considering that
except for weddings, I have never performed a notarial act outside the County of Hillsborough except for one time, so the venue is almost always "State of Florida, County of Hillsborough".
Bottom line is, people will do it how they want to do it. The only way any of us will ever be proven wrong is to be subpoenaed into a courtroom and to be told by a judge that we did not do it right. From my perspective, I'm 100% right and there can be no other way, and obviously, others have the complete opposite opinion and believe they are 100% right.
| Reply by BrendaTx on 5/27/10 8:16pm
Msg #338661
Re: Especially considering that
* I have never performed a notarial act outside the County of Hillsborough except for one time, so the venue is almost always "State of Florida, County of Hillsborough".*
And, I sincerely believe that's where all this venue confusion comes from. Historically, loan documents and other important legal documents were not shuffled across the USA for signing in different venues. Yes, Robert, as young as I look, I remember when no loan documents were mailed and people came into the office where the docs were prepared to sign them.
The notary worked with the document preparer. The signers visited that notary. Fast forward to modern times and the documents are still drafted using traditional, formal styles from those days. The drafting techniques have not been updated across the board to take into account national/global commerce.
*The only way any of us will ever be proven wrong is to be subpoenaed into a courtroom and to be told by a judge that we did not do it right.*
You are exactly right about that. But, when is that going to happen? And, even if it did, it would probably be appealed.
*From my perspective, I'm 100% right and there can be no other way, and obviously, others have the complete opposite opinion and believe they are 100% right.*
No, I actually tend to agree with you about what you believe about the venue. But, I wanted a final answer in the form of a direct legal opinion that would work for me in every situation and I got one. And, I saw it used in the practice. And, I further questioned it regarding use outside of the firm. Got an answer from a Texas lawyer who understood why I needed it. Not the one I expected or wanted, or agreed with, but it makes sense for the general notary working out in the field, such as signing agents do. Admittedly, it makes for a cleaner document to record, and it resolves the issue of proper notary venue. Title company is happier, lender is happier, notary has used proper venue.
| Reply by Robert/FL on 5/27/10 2:08pm
Msg #338569
Also - just for reference purposes ...
... and I know this only applies to Florida:
"The formal requisites of an affidavit are: (1) itle of the case, if to be used in a pending suit; (2) venue, that is, the place where the affidavit is made; (3) name of the affiant; (4) statement that the affiant was duly sworn or affirmed; (5) statement of the facts sowrn to; (6) signature of the affidavit; (7) jurat, that is, the certificate the certificate of the officer taking the affidavit; and (8) authentication of foreign affidavits if required by statute."
-§3.1, Florida Legal Forms, Volume 8: Specialized Forms, by James W. Martin
| Reply by Linda_H/FL on 5/27/10 2:09pm
Msg #338571
Okay....but the only part that involves the notary
is number 7 - the jurat...
| Reply by Bob_Chicago on 5/27/10 1:43pm
Msg #338559
On the other hand.... Just had one this AM. Purchase in AZ
One of the dox (Compliance Agreement) only had venue at the
top (Arizona xx County ) about 8" from Jurat at the bottom with no mention of
any venue at bottom.
Changed top to Illinois , xx County and initialed.
As an aside , it was a standard compliance where bwr agreed to sign or initial more stuff if needed.
Gee , I thought that type of doc should, if notarized, have an acknowledgement, not a
jurat, which is when you state under oath that certain facts are correct as at the time of
signing of the doc, but, heck what do I know, I'm just a Notary Republic.
| Reply by PAW on 5/27/10 2:06pm
Msg #338566
I'm flattered. (I will answer your other questions in a moment.)
>>> 1) When an affidavit is **preceded** by a venue, i.e., "State of Confusion, County of Puzzlement," and that venue is the venue of the property but differs from the venue of execution. should it be changed to the venue of execution? This question has nothing to do with the venue declaration on the notarial certification. <<<
IMO, it really depends on the affidavit is structured. There are many times the "notary certificate" has the affidavit embedded. That is, there is no separate venue just above the "Sworn to ..." statement. In those cases, I do change the venue.
If there is two venues, meaning that there is a 'stand-alone' jurat beneath the signer's signatures, then maybe the venue is okay or it may need to be changed, depending on the wording of the affidavit. Some affidavits include statements that reference the location such as "subscribed in the state and county first mentioned". In that case, the venue at the top would need to be changed to correctly show the venue of the subscription. Other affidavits make no mention of any location. In those cases, I leave them alone if (and only if) there is a separate venue associated with the jurat.
>>> 2) When an affidavit includes introductory wording to this effect: "Before me, I.M. Dummass, a notary public in and for the State of Confusion, personally appeared B.A. Goodeguy, who, under oath, deposes and says:" who initials any corrections to the venue declaration in (1) above? Is it a) the notary; b) the borrower/signer; or c) both? <<<
Referring back to my answer to (1) above, it depends. If the venue at the top is the only venue and needs changing, then I submit that (c) both the signer and notary should initial the change to the venue. If there are two venues, one at the top and one with a stand-alone jurat, then I submit that the one at the top, if changed, should be initialed by the subscriber/signer. The venue on the jurat should be initialed by the notary.
| Reply by BrendaTx on 5/27/10 2:36pm
Msg #338582
Finally! And, a good discussion was had by all.
I think everyone can go away from this confident with a resounding, "Maybe!"
| Reply by Lee/AR on 5/27/10 3:21pm
Msg #338592
ROFLMAO n/m
| Reply by Hugh Nations Signing Agents of Austin on 5/27/10 5:15pm
Msg #338625
Thanks, all
This has been great. There were nine posters in this thread, and 14 different answers to the questions.
Thanks, PAW, for your opinion, obviously thoroughly mulled over, chewed, mulched and spit out. I had reached somewhat similar conclusions, but did not have the confidence of my convictions.
Notable in this entire exchange is that there simply is no authority to which we can turn for such answers. The closest anyone came to offering one was Brenda, who provided the unsupported opinion of a lawyer whose counsel she sought. That tells me that there is a good likelihood that there IS no supporting documentation in legal literature that addresses the issue.
State rules of civil procedure are in almost every state based on the federal model. How convenient it would be if we had something similar for uniform notarial procedures. I've never understood the resistance to that idea, and this is a good example of why it is needed.
| Reply by BrendaTx on 5/27/10 6:29pm
Msg #338640
Re: Thanks, all
*The closest anyone came to offering one was Brenda, who provided the unsupported opinion of a lawyer whose counsel she sought. That tells me that there is a good likelihood that there IS no supporting documentation in legal literature that addresses the issue.*
I agree, with that also, Hugh.
It's been discussed before here and as I recall, those with significant experience and careers in title companies had the opinion that I have been given. The top is about the location of the property, not the place of the act. But, they also agreed that the there was no sure legal source to point notaries in the right direction.
| Reply by JanetK_CA on 5/27/10 9:03pm
Msg #338666
Re: More Nagging questions
If the venue at the top is left blank in a situation where you would normally "leave it alone", would you have the borrower fill it in or do you think the notary should?
And let's say, for example, it's an investment property in a different state and/or county from the signing location. Would it hen follow that it should be filled in with the property location (assuming there's another venue for the signing location included as part of the jurat certificate)?
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