Posted by MichiganAl on 10/8/10 1:57am
Msg #355909

Vancura v Kinko's overturned

Many of us are familiar with the Vancura case. Kinko's was held liable for notary misconduct by one of their employees. The employee notarized Vancura's signature on a document that Vancura claimed was not his signature. It's the reason Kinko's stopped notary services at their stores. Yesterday, surprisingly I think, the Illinois Supreme Court unanimously overturned the verdict. In reversing the decision, the court supported Kinko's claim that it fulfilled its duty to ensure that its training program complied with the requirements of the Illinois Notary Public Act. Thus, the court reversed the finding of liability against Kinko's for negligent training.

The court ruled that Kinko's had only a duty to not consent to their employee's misconduct (OK, that I can understand). The court stated that Kinko's was not under a duty to provide notary training classes taught exclusively by notaries (OK fine, as long as the trainer still understood Illinois notary laws), was under no duty to train its notary employees to keep a journal (a journal is not required in Illinois), and was not under a duty to teach its notary employees that a photo ID was required. That last part is a head-scratcher. Not under a duty to make sure their notaries checked ID? How is that fulfilling its duty to comply with the Illinois Notary Public Act? ID verification is the very heart of a notary act. So on the issue of ID, I just don't agree with the court.

And here's a black eye to the NNA. Vancura also argued that the Kinko’s training didn't meet the standard set by the Model Notary Act, an act that, from my understanding at least, is basically an NNA creation. Vancura used an expert witness that helped write the Model Notary Act, and speaks and writes for the NNA (he also recently received a lifetime achievement award from the NNA). And the NNA has touted the Vancura decision in lauding the act. Only the Model Notary Act was never adopted by Illinois so the court threw out that argument. Oops.

There's nothing online, but I have a copy of the court decision. If anyone wants it, you can shoot me an email.

Reply by Marian_in_CA on 10/8/10 2:58am
Msg #355910

This is really interesting... and I kind of agree that Kinkos themselves probably isn't liable for the negligence of an employee who is acting as a State official. However... I do think that employers who routinely bring in notary training for their employees should be responsible for hiring competent trainers.

I really hope Kinkos/FedEx doesn't decide to start offering notary service again. Their notaries were notoriously neglectful of their duties across the country. I, myself, have witnessed all kinds of scary stuff at FedEx Office places. I've seen notaries leave their journal and seal right out on the counter for anyone to grab - a HUGE violation of notary law here in California.

With Kinko's off the hook for this, that Notary is in some deep doodoo. I read some of his testimony and I thought, "Gee whiz, this guy is an idiot." He kept putting the blame for his actions on his training from his employer.

Thing is... employers themselves aren't really responsible for notary training. Notaries are public officials and should get the training from a far better, less interested source than their employers. Employers will want to set "policies" for their employee notaries that may conflict with state laws, and employees may just do what they're told so they don't lose their jobs.

That's kind of what happened with those foreclosure mills in Florida -- those employees ignored state mandates in favor of their employer's. So in that regard...I think employers SHOULD be held liable when they pull stunts like that. In the Vancura case... it's just a really stupid notary who didn't understand basic notary laws.

I love that he said a Social Security Card would be sufficient ID as long as the signatures matched. My goodness, anybody can sign a social security card! They are mailed to you without a signature, like credit cards. There's absolutely no proof that the signature on the SS card actually belongs to the individual named on it. it's common sense.

The Model Notary Act is kind of hilarious. Only a handful of states have officially adopted it, and most states have only adopted certain portions of it. While it's admirable that they try to enact uniforms standards across the country... it just won't ever happen.

Reply by Susan Fischer on 10/8/10 4:04am
Msg #355912

I'm not so sure, Marian. The whole concept of the Impartial

Notary Public is ancient in civilized societies, and at the end of the day, strive to provide the Notarizational functions throughout our 50 States, and Internationally as well.

There are many Model Acts that have proven success in achieving Commerce, Contracts, and myriad other legal acts.

I submit that this Federal Approach to a Uniform Act regarding the form, function, execution, and legal status is a step toward basic fairness.

The Forclosure Mills generated by the same Institutions that got our Tax Dollar Bailout Help? Let 'em eat Law. (They can forum-shop all they want, nobody likes 'em.)

(As an aside, instead of carping, why not chime in when Congress asks for imput? Then it's in the Recordhe People's Business?)

Anyhoo, I'm for a Uniform Code. States free to meet or beat the Bottom-Line-Standards. That way, in this enormous example of ignoring obvious Notarial Law, no matter which State, the penalties for crimes against the Notarial Ethos, would be Federal, and perpetrators would be punished under Federal Law.

I think it will happen, a Uniform Notary Public Standard (akin to the UCC, eg,) because, as its basis, it is a proud and noble Act, sanctioned by and upheld by History, by Laws of Civilized Socities to protect and preserve both public and private records.

I'm not defending this attempt, i.e., the SS Card signature requirement, because it assumes an absolutely current SS Card. (I, like countless others, have had a current SS Card for many years and odds are that none of those signatures would pass muster for our current signatures.)

A Uniform Code would quiet the discourse about compliance, and level the playing field for Notaries across the board, would it not?

Reply by BrendaTx on 10/8/10 6:24am
Msg #355914

The notary settled for $30,000 years ago.

The good part about this ruling is that the full burden of the notary's behavior is put back on the notary. I like that.

The downside is that as a result of this, training won't be required by those who hire notaries before they supervise them and give them direction.

Reply by ReneeK_MI on 10/8/10 7:03am
Msg #355915

Who else finds this utterly hysterical, in conjunction with

the OTHER 'notary' non-scandal/scandal yesterday??

THIS actually HAS some sideways implications relative to foreclosure processes that have been called into question - but I sure haven't seen this talked about in the mass-hysteria media. This could possibly become an impediment to the ambulance-chasers with regard to class-action, for one thing. If the only entity they could go after was the notary as an individual, it won't be worth the chase.

I have to add just for clarity - an invalid/unlawful notarization is an issue separate/apart from a fraudulent sworn statement, which is an issue again separate/apart from a valid foreclosure.

It's the right call though, IMO. Ignorance is no excuse, and every notarial statute I've ever read requires the notary to KNOW their statutes under which they are commissioned in the first place.

Reply by MichiganAl on 10/8/10 9:56am
Msg #355930

Ironic, isn't it?

Yes, I can see how a case about proper employee oversight might have implications to the robo-signing issue and I'm still baffled as to how a redundant act about accepting notarizations from other states gets some people's boxers in a bunch.

Reply by BrendaTx on 10/8/10 6:02pm
Msg #355995

Why didn't people care before? n/m

Reply by C. Rivera Chicago Notary Services on 10/8/10 8:27am
Msg #355921

here's the link...I strongly suggest that folks who take

our profession serious, do a little 'light' reading.

The appellate decision for the reversal, is very interesting. The dissenting judge, O'Malleys' opinion is a def read IMO. Starts page 48-72...again, just a little light reading but worth it.

http://www.state.il.us/court/OPINIONS/AppellateCourt/2008/1stDistrict/December/1062750.pdf

Reply by LisaWI on 10/8/10 8:55am
Msg #355926

Re: here's the link...I strongly suggest that folks who take

My question to all of this is, is the Illinois SOS going to change the way their Notaries receive the proper training to be a Notary? Or have they already?

Wisconsin Notaries are now required to take an online assessment of what they know to be a Notary. They have to pass with 80% (guessing here), or write a paper describing what they feel their duties are. This is now submitted with the application for applying with the state to become a notary or to renew your commission.

Reply by C. Rivera Chicago Notary Services on 10/8/10 10:36am
Msg #355939

Lisa, we do not have to take any type of exams to become a

notary here in Illinois, however, I am proponent for mandatory training!

Reply by Bob_Chicago on 10/8/10 8:53am
Msg #355925

Actually, at the time of the Vancura transaction, the IL

Notary act provided the following for a NP's duty to ID a signer
"...
(1) is personally known to the notary;
(2) is identified upon the oath or affirmation of a credible witness personally
known to the notary; or
(3) is identified on the basis of identification documents. "
Last year the following was added:
"Until July 1, 2013,
identification documents are documents that are valid at the time of the
notarial act, issued by a state or federal government agency, and bearing
the photographic image of the individualʼs face and signature of the individual.
(Source: P.A. 95-988, eff. 6-1-09.)"


The NP in the case said that he examined the signer's SS card and matched the signature,
so was apparently in compliance with the law at the time. ( and, yes, I know that the SS card was not created to be an ID card,)

I am not saying that he was in compliance with good NP practice , but he was in compliance with the then law. I have not yet read the new decision, but that would seem to be the basis.
The applelate court said that KINKOS was negligent for not training the NP to go beyond the provisions of the then law. Actually , I never understood the Appelate CT decision, but ,
obviously XYZ loved it.
BTW, I required an actual photo ID prior to the change of law, but sometimes used IDs that would not have been in compliance with the current law if I was confident of the signer's identity.

Reply by MichiganAl on 10/8/10 9:51am
Msg #355929

Wow Bob

I had no idea that at the time Illinois didn't even require a photo ID. That's the only thing I could see that would have put some liability on Kinko's. It really does make the original decision seem pretty curious. Do you think Illinois changed the statute because of the Vancura case in particular?

Reply by jnew on 10/8/10 10:20am
Msg #355935

Re: Wow Bob

The original notary laws were written at a time when photcopies of identification did not exist. My first driver license was in 1964 and it contained no photo. Wisconsin State ID cards contained photos but were generally used by people between the ages of 18-20 who at the time were legally allowed to drink beer in certain bars. No one else saw the need in having a photo-id. I know our state still legally allows a notarization based on personal knowledge of identity with no supporting identification required. We have a handbook issued by the SOS which defines notary acts and consists of acts and practices which will conform to the statutes. The statutes themselves do not define that any specific training is necessary to become a notary. The statutes do little to define acts which most notaries choose as necessary. In our state, a notary has no obligation to keep a record of any act and is limited to a fee of $.50 per notarial act. This fee is the same as it was in 1972.

Reply by Bob_Chicago on 10/8/10 10:43am
Msg #355941

$.50 per notarial act.This fee is the same as it was in 1972

Boy, are we lucky in IL. We can charge one whole dollar ( same as the Duke Brother's bet
on Don Ackroyd in Trading Places) , which is , I believe the same fee that Abe Lincoln would have been able to charge if he was a NP.
Actually , at the risk of being flamed, I am just as happy that IL does not have a journal reqmt.
I do maintain my own records, but would not be happy about filling out a line in a journal book, having signer sign, etc ( getting a thumb print, a blood sample and a hair {including root} etc, for every doc notarized, Some tititle doc notarization are now well into double digits per pkg, including such dox as privacy policy. Further , many times they use a ack when a jurat is called for and vice versa.
Feel badly for you CA types, as that is what I believe you need to do.

Reply by C. Rivera Chicago Notary Services on 10/8/10 10:59am
Msg #355945

here the fire Bob - a notarial journal, though its a PITA

will cover YOUR A$$ if you ever need it, as it is unbiased proof that the notorization actually took place, unbiased from any and all other documents the signer may have signed.

In all of my years as a notary, I always kept a spiral bound hardcover book for all of my notarizations while working for various law firms. Then when I decided to get into the signing biz, as an NSA, I started using the fancy notary journals. And am damn glad I did I highly if not strongly recommend that ALL notary publics or nsa's start using one!

I've only had 1 question with regard to a notarization I performed which was a Will signing. And I was kindly asked by the Plaintiff's attorney for a copy of the page where the decedents signature was, just in case the judge wanted to see it. I went to court and all, praying and hoping NOT to be part of that lawsuit in any way (but knowing I did nothing wrong) and glad I covered myself with that journal! It was MY proof that the signer did in fact come before a notary (or I to him as it were), and signed the notary journal.

So dude, I'd start using one if I were you, because you just never know. And with the rising fraud in this industry, its best to cya all the way.

Reply by LisaWI on 10/8/10 11:06am
Msg #355947

Re: $.50 per notarial act.This fee is the same as it was in 1972

It has been to the table a couple of times to get the fee raised. So they are trying. I cannot tell you how thrilled I am that an assessment is now required to become a notary or to renew your commission. I have heard so many horror stories about Notary conduct here in Wisconsin, it would probably make Al Piombinos head spin around in a circle a couple of times. So, its a start. Our SOS actually has been making changes here and there all positive ones, some of them being quite small, but they matter in the big picture.

And I know that keeping a journal is more leg-work, but you get used to it. We dont have to have one here either, but I do. To save time at the table, I do prep work in my journal ahead of time documenting all the notarizations and other notes. Basically at the table all I have to do is record their ID info and get their sigs. Piece of cake.

Reply by jnew on 10/8/10 10:56am
Msg #355943

Re: Wow Bob

I went from memory on the fee. Actually the statute says that the fee is .50 per document. Say someone asks you to notarize a document amending subdivision restrictions and the original restrictions call for 75% of owners to execute the amendment and the subdivison has over one hundred owners. You would be limited to a .50 fee for filling out and signing over 75 acknowledgments, since it is still only one document.

Reply by C. Rivera Chicago Notary Services on 10/8/10 10:34am
Msg #355938

MichiganAl, YES! And XYZ has their damn hands all of it...

For example, after the decision, it is now required, until 2013, for any and all new property conveyances, for cook county properties, to require in addition to its county forms, a new Notarial Form that requires the grantors signature and thumbprint. The NSA/NP must then take or mail in that form to the recorder's office, pay a $5 fee. There are other stips to this but this is the main premise. The new law did allow us to charge up to $25.00 for the processing and handling of the form...WOW yeah for us?!

But I am still smitten that the appellate court overturned the Vancura decision all for the RIGHT reasons, but am still wary about our state's SOS's involvement with the XYZ organization.

I'm with the majority in that XYZ should totally stay out of politics and let the states run (or ruin for comedic purposes) its own government business.

Private orgs like XYZ that penetrate and directly influence any state's statutory notary laws is just looking for trouble, as was the case in point. Total backfire!

Oh, and we also have new identification law, which is a definite benefit and should have been this way from the get go! I never accepted a non-photo ID, that's just ridiculous and anyone using non-pictorial ID's, clearly are not using any type of common sense, regardless if the laws here did not specifically call for a picture ID...sometimes we have to use common sense instead of whats on the law books for certain situations, though I believe that the law ultimately is the law of the land, but the Vancura case was a prime example of an exception to that, and an example of what a notary public should NOT do.

Reply by nobhill on 10/8/10 11:32pm
Msg #356024

These courts are asinine. Unreliable garbage!