Posted by HisHughness on 12/16/11 1:11am
Msg #406763

Niggling question

Often we encounter affidavits in which the venue is listed at the very top of the affidavit, and venue will likewise be listed on the notarial certification also. If the subject property is outside the county of the notarization, what venue is used in the heading of the affidavit in such cases?

An affiliated question relates to corrections. Such affidavits often are framed to include the officer notarizing the affidavit. In such instances, when a correction is necessary in the body of the affidavit, who initials the correction -- the borrower(s) and the notary, or just one or the other, and, if so, which one?

Please: If you answer and if you have authority for your answer, cite your authority. If your answer is based solely on your opinion or experience, stipulate that. I think that might reduce the heat during the discussion.

I know that this question was dealt with tangentially in an earlier thread, but I don't think it was answered definitively.

Reply by JanetK_CA on 12/16/11 2:48am
Msg #406765

"If you answer and if you have authority for your answer, cite your authority. If your answer is based solely on your opinion or experience, stipulate that. I think that might reduce the heat during the discussion."

Great advice for us all to follow on ANY issue - all the time!!!

As for your questions, I think those are classics. I've seen them addressed here in various ways over the years, but never with anything definitive that I can recall, either. My guess is that these will vary by state and/or who the document originator is, and that there really isn't any definitive answer that can be supported with documentation - just lots of strong opinions. I hope I've wrong about this one...

Reply by BobbiCT on 12/16/11 7:08am
Msg #406769

Venue on first page of Affidavit ...

CT perspective; experience and life with real estate and probate attorney, title insurance company attorneys; clueless bank QC just-above-minimum-wage, 1-year experience QC experts; and litigation attorneys (and a group of very intelligent, experienced paralegals sitting around after meetings who just want to make sure the document gets accepted and unanimously agreed that the following "gets it done and gets it accepted by all the Esqs."). Based on too many years of instructions from attorneys from multiple states dealing with real estate and Probate Court Affidavits of Fact:

The venue on the first page and the venue in the notarization block should be the same. First page is the venue were the Affiant (person swearing [not always in a good way, Hugh] and signing) has feet planted at the time oath is taken and Affidavit is signed. Notarization venue is where the notary has feet planted at the time the oath is given and Affidavit is signed. Obvious to you and me, the venues should match. LOL

Seems a little redundant to have the venue on the first page as well as notarization block, but then I have seen many Affidavits where the Affiant/signer completed the venue on the first page and the notary did not complete the venue in the notarization block .... or the notary completed the venue on the first page and not in the notarization block ... or no one completed the venue on the first page ... or left it California (see below). Guess the theory is: include two venue blocks in document and get at least one completed venue back.

Of course, Hugh, this does not help when the California lender/title company loan processor has dropped in a venue of Oakland, California into the Affidavit form and the Affiant/signer and notary are both in Hartford, Connecticut. LOL .... line through, correct and we both initial. Reduncancy theory: So the Expert QC person with no legal education will "pass" it; i.e., each DIFFRENT QC reviewer could independently rule that it is 1) the signer's venue block to initial, 2) the notary's venue block to initial, or 3) both should intial.

Reply by jba/fl on 12/16/11 7:14am
Msg #406773

Re: Venue on first page of Affidavit ...

Wow, Bobbi, overkill rules! LOL

My experience: venue matches, BO initials theirs (if there is one at the top of the page) and I do notary block initialing alone.

I know Brenda/TX has another take on the "property venue" (top one), but haven't found hers yet and have to do something else right now. I'm sure she will weigh in shortly.

Reply by BrendaTx on 12/16/11 11:41am
Msg #406817

Re: Venue on first page of Affidavit ...

Nope...not going to discuss it.

If the document is recorded, I have a strong opinion that is underpinned by advice of an attorney, but not interested in the debate. Hugh knows my answer. Robert says it is wrong.

Reply by HisHughness on 12/16/11 9:07am
Msg #406782

Re: Venue on first page of Affidavit ...

***Obvious to you and me, the venues should match.***

Not all that obvious. What if it is an acknowledgement, and the signer signed elsewhere before getting to the notary?

Reply by FlaNotary2 on 12/16/11 9:10am
Msg #406783

But that wasn't your question...

You were talking about an affidavit, which must be signed and sworn to in the presence of the notary.

I have never seen a venue on top of a deed here in Florida, although I have heard it happening in other states. A deed can be executed without a notary present - an affidavit can not.

Reply by HisHughness on 12/16/11 9:26am
Msg #406788

Re: But that wasn't your question...

I use the form of acknowledgement provided by the lender/TC, whether it is an affidavit or not. If they are satisfied with an acknowledgement for what should be sworn averments, then I'm not going to quarrel with them. Wednesday I had an "Occupancy and Financial Status Affidavit" out of California that had venue and preamble at the outset, and an acknowledgement with venue also.

Reply by FlaNotary2 on 12/16/11 9:36am
Msg #406792

If an affidavit is drafted with an acknowledgment then it

was drafted incorrectly, plain and simple. If an affidavit begins with "Before me personally appeared John Doe, who being duly SWORN", and then is concluded with an acknowledgment, this is a major conflict, and, IMO, it is the notary's responsibility to make a certificate that complies with state law and is as clear and unambiguous as possible.

Reply by FlaNotary2 on 12/16/11 7:10am
Msg #406770

(sigh) OK, here goes...

Based on:
- The legal opinions of three attorneys who I have worked for;
- The affidavit samples set forth in the Florida Governor's Reference Manual for Notaries;
- My notary education curriculum which has been approved by the Governor's office;
- My notarial law presentations approved by the Florida Bar; and
- My experience as a notary educator and as a full time Florida Registered Paralegal who drafts a great many affidavits:

I have come to the conclusion that an affidavit, in itself, is the certificate of a Notary Public. The certificate starts with the venue of the notarization, followed by a preamble written in the first-person perspective of the notary ("Before ME, the undersigned authority, personally appeared John Doe, who, being by me duly sworn, deposes and says:"), followed by the statements to which the affiant is swearing (which might also written from the notary's perspective - ex. "...deposes and says: That he is 18 years of age and was born at Tampa, Florida; that he is currently employed ..."). The affidavit is concluded by the signature of the affiant, and the jurat, signature and seal of the notary. The affidavit form, written from the first person perspective of the notary, is a notarial certificate. Not only that, but it is a notarial instrument whose format has not changed since the 15th century.

If an affidavit is a notarial certificate, then the venue immediately proceeding the affidavit must reflect the location of the notarization. It has no bearing whether or not property is involved - if the matter concerns property then this is something that the affiant is swearing to; it is not something that changes the entire context of the document. An affidavit is simply a sworn statement, reduced to writing and signed before a Notary Public.

Further, having two venues (as I know many notaries prefer to do by adding another venue over the jurat) is redundant and down-right silly. If there is a preamble at the top of the affidavit written from the notary's perspective, then this wording is part of the notarial certificate, and the venue preceding the certificate must be the location of the notarization.

Even in the event that the affidavit is NOT written from the notary's perspective, the venue on top of the affidavit is reflecting the venue of the DOCUMENT. Just because the affiant mentions a piece of property in his sworn statement does not make that property the venue of the affidavit; just like if the affiant swore that he was born in Hillsborough County, Florida, would not make this location the venue (unless he was also signing the affidavit in that location).

Any wording that is written from the perspective of the notary - whether it is the preamble, the jurat, or even the sworn statements if written from that perspective, fall within the notary's jurisdiction to correct or revise the contents. The preamble, venue and jurat should only be initialed by the notary. The sworn statements stated in the affidavit should be initialed by both the signer and the notary.

Now, this does not apply to California, as we all know. California notaries like for their certification to be completely separate and apart from the document - basically, like a signature guarantee. I like my notarization to be used for its original, intended purpose - to authenticate not only the person's signature, but the document. Notarization is important, folks... I know that some think I have an overinflated idea of notaries but I do know that an affidavit without a notary is not an affidavit. A deed is not a deed without being voluntarily executed, and the only way to prove that it was voluntarily executed is through the use of a notarial acknowledgment. And, in my Florida-specific opinion, the signer is acknowledging the DEED ITSELF, not just the signature on the deed.

Reply by HisHughness on 12/16/11 9:17am
Msg #406785

Re: (sigh) OK, here goes...

Well thought out and well stated, Robert. However, I would caution any signing agent to be careful in following the advice with respect to initialing corrections. You do not do real estate transactions. In the signing agent's world, the TC and/or loan officer rules with respect to the document itself. I can assure you that if a signing agent sent back a corrected document with only the notary's initials, whether in the preamble or the signer's averments, he would get it back with instructions to get the <signer's> initials.

Reply by FlaNotary2 on 12/16/11 9:37am
Msg #406793

The signer has no business initaling anything within my

notarial certificte - the certificate is mine and mine alone and no one, according to state law, may alter or add anything to it.

Reply by HisHughness on 12/16/11 10:03am
Msg #406795

Re: The signer has no business initaling anything within my

It would serve you well, Robert, if you did a couple dozen real estate closings. You would quickly discover that sometimes, discretion is the better part of valor.

Reply by Linda_H/FL on 12/16/11 10:07am
Msg #406796

I agree with him Hugh...no one has the right to

do anything with the notary cert other than the notary - and crossouts and corrections get initialed ONLY by the notary - nobody else.

Reply by FlaNotary2 on 12/16/11 10:31am
Msg #406801

What is so special about real estate closings?

I've notarized dozens of deeds, dozens of mortgages, dozens of wills, HUNDREDS of affidavits.

Notary law is notary law. I don't answer to any title company, I answer to the Governor.

Reply by HisHughness on 12/16/11 11:38am
Msg #406815

Re: What is so special about real estate closings?

*** I don't answer to any title company, I answer to the Governor.***

Robert, sometimes you are so full of yourself it's a wonder that you don't explode and take out half of Tampa. Your original insights were most valuable, but now you have reverted to bloviating.

There is no "law" that says an affidavit must carry a jurat. That it is accompanied by an acknowlegement will undermine the purpose of a document that is supposed to be sworn, but there is no "law" that says a document preparer cannot undermine his own document. With an acknowledgement instead of a jurat, he simply winds up with an unsworn document. There is no "law" that prohibits that.

If you did a couple dozen real estate closings, you would quickly discover that the Governor does NOT pay your fee, and if the party who is paying your fee insists upon converting a sworn document into an unsworn document, then you acquiesce in the hiring party's wishes. And in doing so, you are not breaking any "law." You are simplying doing what the hiring party hired you to do.

Reply by Linda_H/FL on 12/16/11 12:09pm
Msg #406823

Hugh - Paul's post Msg #170360

"By definition an affidavit is "a sworn statement in writing made esp. under oath or on affirmation before an authorized magistrate or officer". (Merriam-Webster Dictionary of Law - 1994) It doesn't state that the act be certified (by attachment of a certificate, i.e. jurat).

In FL, we have a statute on the books that requires us to use a jurat on an affidavit if an acknowledgment is present. F.S. 117.03 states, "Administration of oaths - The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required." However, if NO certificate is present, there is nothing telling us that one must be attached."


So, if the document requires a sworn statement (the undersigned being duly sworn depose and say) we CANNOT substitute an ack for it - and I don't care who tells us to...unless it's the governor.

Reply by FlaNotary2 on 12/16/11 12:27pm
Msg #406826

Re: What is so special about real estate closings?

>>>There is no "law" that says an affidavit must carry a jurat.<<<

Not true in Florida. And luckily, our laws allow the notary to fix an affidavit to include a jurat.

>>>If you did a couple dozen real estate closings, you would quickly discover that the Governor does NOT pay your fee, and if the party who is paying your fee insists upon converting a sworn document into an unsworn document, then you acquiesce in the hiring party's wishes. <<<

Exactly my point. I am not going to violate basic notarial principals to appease some dweeb at a title company.

Reply by HisHughness on 12/16/11 12:35pm
Msg #406828

Re: What is so special about real estate closings?

Robert, please give me a cite to any law in any jurisdiction that compels a document preparer to attach a jurat to a document that would normally carry a jurat if the preparer does not wish to do so.

There is a vast difference between complying with the requirements for structuring a valid document and compelling someone to do so. The only compulsion in the latter case is that the preparer has created a document that will not serve the intended purpose. The preparer won't serve jail time. He will not be fined. He will not be placed in stocks in the village square. The only sanction he will suffer, other than creating an invalid document, is perhaps having you point your finger at him and screech: "A pox on you! The governor sentences you to notary hell!"

Reply by FlaNotary2 on 12/16/11 1:14pm
Msg #406836

Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989)

ANTONIO PINA, Appellant, v. KAREN SIMON-PINA, Appellee
Case No. 88-1560
Court of Appeal of Florida, Fifth District
544 So. 2d 1161; 1989 Fla. App. LEXIS 3396; 14 Fla. L. Weekly 1452
June 15, 1989, Filed

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit, which is required by section 48.194, the person swearing before the notary must under oath assert that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.

Where an affidavit is called for, an acknowledgment will not suffice. Hammond v.Eastmoore, 513 So.2d 770 (Fla. 5th DCA 1987); McGibney v. Smith, 511 So.2d 1083 (Fla. 5th DCA 1987). Section 48.194 clearly requires that the process server's affidavit--not merely an acknowledgment--be filed. Barrios v. Sunshine State Bank, 456 So.2d 590 (Fla. 3d DCA 1984); Nettles v. White, 439 So.2d 1048 (Fla. 2d DCA 1983); Neff v. Adler, 416 So.2d 1240 (Fla. 4th DCA 1982). In this case, the notary only asserted that the process server acknowledged he signed the return. He did not require Rogelio to swear that the facts set forth in the return were true.

Reply by FlaNotary2 on 12/16/11 1:16pm
Msg #406837

§ 117.03, Fla. Stat. (2011)

"The notary may not take an acknowledgment in lieu of an oath when an oath is required."

Reply by HisHughness on 12/18/11 11:42pm
Msg #406990

Robert, I’m sorry I wasn’t able to respond earlier.

Much family Christmas stuff intervened. But here you go:

1. You have quite an expansive view of your self-importance, and have ever since you began posting on this forum. Your aim appears to be diametrically opposed to mine, which is to facilitate in the most efficacious manner possible the signer’s business. Your aim, on the other hand, is apparently to insert yourself so deeply in the document execution process that <your> role, rather than the role of the signer, becomes preeminent.

2. In furtherance of that goal, you construe the law respecting the notarial process in the widest possible terms to be as restrictive as possible, thus leaving you as the only one with the key to effective document execution. That is far different from my aim, which is to try to find a reasonable construction of the law that will assist a signer in achieving <his> goals.

3. Our disagreement over whether to substitute my judgment for a document framer’s judgment embodies our different approaches quite well.

Last week, I had a package with three fraud warnings. One had no notarial certification, one had an affidavit, and one had a jurat. None had a preamble or any wording in the body of the document that indicated it was a sworn affidavit – not at all unusual for affidavits in a loan package. You would be aware of that if you ever followed my advice and did a couple dozen loan closings.

Now, based on your construction of Florida law, you would be required on the affidavits that carried an acknowledgement to override the framer’s judgment and substitute a jurat. I don’t construe Florida law that way. I construe it to require me to substitute a jurat for an acknowledgement if the body of the document reflects that it is sworn testimony. But if the framer did not explicitly state that, but does explicitly wish the document to carry an acknowledgement, I know of no legal requirement – in Florida or anywhere else – that I overturn his judgment and convert a document into sworn testimony when that is not what the framer sought.

You have, I believe, been adamant in stating that it is UPL for a signing agent to select the form on the notarial certification for a document. Yet apparently you are quite comfortable in substituting your judgment for a framer who has already selected the form of certification he wishes to use. I don’t think you can have it both ways. I also think you need to do some loan closings, and you need to work on making yourself a little less visible during all signings.

Reply by ReneeK_MI on 12/16/11 7:12am
Msg #406771

I suspect confusion arises due to the different applications of the word "venue". If we limit the word strictly to its application on an Affidavit, it becomes much more simple.

I cite: http://www.thefreedictionary.com/venue

a. The locality where a crime is committed or a cause of action occurs.
b. The locality or political division from which a jury is called and in which a trial is held.
c. The clause within a declaration naming the locality in which a trial will be held.
d. The clause in an affidavit naming the place where it was sworn to.

Specific to an Affidavit, which is by definition a sworn statement - one of the basic elements is the venue. Since Google is so ripe with citings for both "venue" and "Affidavit", it seems more illustrative to point out what I could NOT find, instead.

I can find NOTHING to support an Affidavit that presents two conflicting venues as being appropriate or correct in any circumstance.

I did find this (link below), digitized law manual from 1915 that I can't cut/paste from - an interesting read! The link should take you to the top of page 346, where it does discuss conflicting venues (one on the 'face' of the Affidavit, conflicting with the jurisdiction of the notary).

http://tinyurl.com/6ol7n9m

When you consider what any specific Affidavit pertains to, it just confuses the real issue - I find nothing to support the idea that certain Affidavits have more complicated venue requirements. What is a venue - its literal meaning is "neighborhood", it is the place where some action occurred and on an Affidavit, it is the place where the statement was sworn to (per both notarial requirements, and every citing I found via Google). The venue on the Affidavit is not some binding selection of legal jurisdiction as it pertains to a consequential action - it doesn't matter if the Affidavit pertains to real estate, or paternity, or medical facts, or what have you. Jurisdiction for legal action (governed by both Fed & State laws) is almost always selected from an either/or list - where a person lives or works OR where the crime or loss occurred OR where the parties agree is mutually convenient, etc. (I only say almost always, because always is too big a word to EVER use - but I only find either/or lists no matter where I look.)

Interesting - I particularly enjoyed the vintage law manual. I look forward to seeing what others might contribute. =)

Reply by ReneeK_MI on 12/16/11 7:13am
Msg #406772

Sheesh, I could've waited 2 min & just said "yeah". =) n/m

Reply by jba/fl on 12/16/11 7:33am
Msg #406775

But then no vintage cite which a male FL notary is enjoying.

And probably right now if he can squeeze it in.....LOL

Reply by FlaNotary2 on 12/16/11 8:53am
Msg #406781

Actually, I didn't read it but I have read enough "vintage"

material to know how an affidavit is to be prepared.

Reply by HisHughness on 12/16/11 9:29am
Msg #406789

Don't push your luck, Robert n/m

Reply by VT_Syrup on 12/16/11 8:53am
Msg #406780

It might be useful to consider what the venue affects.

1. It tells us which laws the affiant violated if he/she lied. It may affect where the trial would be held if perjury were suspected.

2. It hints at where the notary was commissioned, although some states allows a notary to act out-of-state if the document will be used in the state where the notary was commissioned. Likewise it hints at how the notary was supposed to perform the act, what kind of ID was acceptable, etc. Of course, the jurat should separately state where the notary was commissioned.

3. It tells us the time zone associated with the date, which reduces the possible time of execution from a 48 hour span to a 24 hour span.

Did I miss anything?

Reply by jnew on 12/16/11 9:14am
Msg #406784

IMHO the affidavit needs to be examined prior to signing. If the initial paragraph refers to the notary with language such as "before me_______ appeared...", the state/county should be treated as the venue and if it does not match the place of signing should be changed. I would be sure to initial the change and probably would have the signers initial the change as well, especially if working with a signing service. If the statement does not refer to the notary in the first part of the text and the only reference is in the jurat, the venue should be shown preceding the jurat. Many loan affidavits do not include the venue, so I add one by printing the venue before the jurat. Also in my state of Wisconsin, the signing party should be printed as part of the jurat. Many loan affidavits do not include the printed names in the jurat as well. If the jurat has the correct venue, then I will not change the state and county listed at the head of the document if it does not match the venue of signing. I will change it if directed to make the change in the instructions, but that part of the document is not my responsibility if it is not part of the notarial section. Also, I give the option to the signer to make an oath or affirmation, by asking if they wish to swear before God.

Reply by jnew on 12/16/11 10:14am
Msg #406799

After reading the responses, I believe there may be some validity to the document venue and the jurat venue matching (if the jurat is separate from the text of the affidavit). I tried to find the issue on some online sources and came up with a couple:

U S Legal.com
“The formal requirements of an affidavit usually are:
• The identification of the place where the affidavit was taken (i.e., the venue);
• The signature of the affiant or declarant (i.e., the person giving the affidavit); and
• The certificate evidencing the fact that the affidavit was properly made before a duly authorized officer (i.e. the jurat), which includes the proper authentication by the authorized officer.”

Legal-dictionary/freedictionary.com
“An officer cannot take affidavits outside of the particular jurisdiction in which he or she exercises authority. The source of this authority must appear at the bottom of the affidavit. A notary, for example, would indicate the county in which he or she is commissioned and the expiration date of the commission.
The affidavit usually must contain the address of the affiant and the date that the statement was made, in addition to the affiant's signature or mark. Where the affidavit has been made is also noted. When an affidavit is based on the affiant's information and belief, it must state the source of the affiant's information …”

www . ehow.com
The affidavit must include the day and place of the affiant's signature for the purposes of a time reference. Fact-finders may find it helpful to put an affidavit into context by considering where and when the statements within the affidavit were made. For example, an affidavit created and signed several months after the relevant event may be much less credible to a fact-finder than one created and signed within hours of the relevant event.


I guess what I got out of this was the fact that the document venue shows the place the affidavit was made. The affidavit becomes an affidavit only upon the oath or affirmation. Without the oath/affirmation it is not an affidavit. That leads me to believe that the location of the oath/aff is the document venue. The distinction of the jurat venue shows not only where the notary witnessed the oath but also that the notary was officially qualified by law to notarize the affidavit in the location the oath was given. (county and state notary commissioned).

All this leads me to another question. Why would a lender print a venue on an affidavit which differs from the actual venue of the affidavit?

Also, the statement that the address of the signer should appear on the affidavit. I have seen affidavits that don't include this information.

So if we are voting, I am voting for:
venue of document and jurat must match, in the case where jurat is separate from affidavit and not included in text of document.

If document venue is incorrect, line out and insert correct venue and have signer initial change with notary intialing change as well if document venue is also jurat venue.

Don't add additional venue to jurat if notarization is part of the text.

Reply by Stephanie Santiago on 12/16/11 12:57pm
Msg #406833

Each Notary Public should follow their state's notary Law...

While I do read posts on Notary Rotary, I follow California notary Law.
(It seems to be black and white - no gray areas).
I have privately consulted a California notary Public - James or Cindy when I've had a CA notary question.
I basically follow notary law for my state.
I'm just keeping it simple.

Stephanie

Reply by taxpro on 12/16/11 1:01pm
Msg #406834

ask an attorney.....oh, wait... n/m

Reply by Donna McDaniel on 12/16/11 1:27pm
Msg #406839

On affidavits

I always have the borrower fill in the venue on top or change and initial it if it is not where the oath is being given.

I will change the notary cert myself and initial. If there is no venue on the notary cert, and it is usually the case with most affidavits, I add it to my cert. May be overkill, but that's just me.

My reasons for doing so are as stated above by Robert and Linda. I realize no one will go to jail or be condemned to notary hell, but should the affidavit be challenged, I believe I used proper procedure and have never had a TC or lender question it.