Posted by Dennis_IN on 6/7/11 10:33pm
Msg #385437

Realtor was amazed that I swore

in the Borrowers. She said that in her 22 years in the business that was the first time she has had a Notary swear in the buyer and seller at a closing. I couldn't believe it, I pointed out the notarial wording "sworn before me" and she was impressed. Even a cash deal has at least one title doc that requires notarizing. She asked about all those closings where the borrowers were not sworn in...I just shrugged my shoulders and continued the closing. She said I will do her closings from now on...I hope so...Question: What if someone questioned the validity of a closing where their signatures were notarized but they were not sworn in? What recourse if any would they have? Just wondering.

Reply by GOLDGIRL/CA on 6/7/11 11:10pm
Msg #385438

I get this occasionally, too. One time a lender and Realtor snickered when I gave the oath, like I was some kind of doofus. I felt like telling them they've been hanging around with the wrong notaries. Another time I was signing another LSA and she told me she never gave the oath and had no idea why she ever would. Yikes!

Anyway, I vaguely recall a case, I think in NY, where there was all kinds of trouble because a notary did not give the oath; but I will never be able to recall what it was. I think I read about it in one of those "Don't let this happen to you" e-mails from a TC - actually, I think it came from NREIS years ago. Maybe somebody with a better memory than I (that could be just about anybody) will recall ....

Reply by Roger_OH on 6/8/11 12:07am
Msg #385441

I've had that happen a few times as well. Penalty in Ohio for not administering the oath when required is $100 fine, up to 30 days in jail, and loss of commission.

That's assuming someone even knew how to complain about a notary here, which is done by each county and not exactly common knowledge.

Reply by DaveCA/CA on 6/8/11 12:31am
Msg #385444

First of all, catchy subject line. I was thinking we were going to get some kind of story here where tempers flew. ha ha ha. I get this a lot too and I just tell them that it is the law and that is why I do it. I tell them that if I am ever called into court saying that I didn't give an oath, that I will be able to call thousands of witnesses to support the fact that I always do an oath and that I would like to add them to my witnesses list. They usually chuckle and we move on. I know it's annoying at times but this goes to the core of what we do as a notary public.

Reply by Marian_in_CA on 6/8/11 1:10am
Msg #385447

I think a lot of people think that way because (in CA) the raised arm is optional and there is no standard wording for the oath. As long as the notary makes it clear to the signer that they *ARE* under oath and that they answer affirmative to understanding this... it all falls under "being under oath" -- I've seen it done a lot of different ways.

Reply by Marian_in_CA on 6/8/11 1:14am
Msg #385449

Oops, as reference... per the CA handbook, page 12:

"*There is no prescribed wording for the oath, but an acceptable oath would be “Do you
swear or affirm that the statements in this document are true?” When administering the oath,
the signer and notary public traditionally each raise their right hand but this is not a legal
requirement."

Reply by BrendaTx on 6/8/11 4:45am
Msg #385452

* “Do you swear or affirm that the statements in this document are true?” *

That is my jurat question and my acknowledgment question is

"Do you acknowledge that this is your signature placed there for the purposes stated in the documents?"

Although it is an option, I do not ask for a raised hand. The fact that I ask these questions at all are surprising enough that the moments are memorable when I do.

Reply by JanetK_CA on 6/8/11 2:37am
Msg #385451

Occasionally I see one that has no jurats, just acknowledgments, so it's theoretically possible that some packages don't need an oath administered (at least in my state), but that won't explain 22 years worth!

As for the consequences, I used to network with an estate planning attorney who was also a part time judge. He told me that when he was a litigator that one technique he often used to get things thrown out of court was to question the validity of a notarized document. He said it was very effective. Can't offer any more than that...

Reply by FlaNotary2 on 6/8/11 5:29am
Msg #385453

It is an excellent defense tactic

And one that I have used as an expert witness.

The oath is still required in Florida. If there is a jurat, an oath must be administered. A notarization is much more than a stamp to the paper. Without the oath there has been no notarization, and in many cases this is grounds to dismiss some documents. (see Youngker v. State (http://tinyurl.com/3p8ws59)).

I never hear other notaries administer an oath when required. It is actually a third degree felony in Florida to execute a false notarial certificate, and signing a jurat indicating that an oath was administered, when in fact there was no oath, is a false notarial certificate. People think it doesn't matter, but it does matter big time.

Reply by BrendaTx on 6/8/11 9:42pm
Msg #385597

Re: It is an excellent defense tactic

*People think it doesn't matter, but it does matter big time.*

I would love to agree with you but have nothing to put my finger on to support this statement, other than the notary law that I do uphold. I just don't ask for a raised hand. It is optional.

Has anyone ever been removed from office or prosecuted for this?

Reply by FlaNotary2 on 6/9/11 5:44am
Msg #385618

I believe so

There was a case in New York not too long ago regarding this issue - and I think the notary was suspended. In Florida, I know without a doubt, based on the case law I provided, that the verbal oath is required.

As for the raised right hand, I think Connecticut is the only state that requires it. I personally don't require a raised right hand in most circumstances.

Reply by Kathy Fletcher on 6/8/11 7:23am
Msg #385455

This is how I protect myself

When I give the oaths, I place either a J or an A in my journal entry. I also place a CW for the Credible Witness oath.

This way if I am ever asked in court, I know exactly what I will tell the judge. This is also one way I make sure I never forget to give the oaths. This also helps those questioning to know that I always give the oaths.

Hope this helps others.

Reply by Linda_H/FL on 6/8/11 7:28am
Msg #385456

Re: This is how I protect myself

Good thing you do that Kathy, since it's required by AZ law - page 19 of your manual:

http://www.azsos.gov/business_services/notary/Notary_Public_Reference_Manual.pdf

Reply by FlaNotary2 on 6/8/11 11:22am
Msg #385484

I hate to be picky, but if I were a judge

I would question whether a little "J" in a journal is sufficient proof that an oath was administered. Firstly, I cringe when journals list "Jurat" as a notarial act, because it isn't one - it is a certificate that a notarial act (i.e. an oath) was administered. Therefore, the proper description of the act is an "Oath", not a "Jurat".

I would not utilize a journal that does not either 1) include checkboxes for the different notarial acts (listing oaths as one of those acts and omitting jurats), or 2) allows enough space for me to notate the act myself. I want my journal entries to be perfectly clear that John Doe appeard before me at 12:21 p.m. on June 7, 2011, and took an oath.

The MOJO, while it appears to be of very high quality, does not have a place to indicate the type of notarial act performed. (It also lists "Social Security Cards" as acceptable IDs which makes me cringe also).

Reply by Linda_H/FL on 6/8/11 11:31am
Msg #385487

It lists Social Security cards as one method that was

used - it does not indicate it's an acceptable method - and in some states, where "reasonable reliance" is sufficient, social security cards may be used as part of the ID process.

If I complete a jurat, it goes without saying that I've administered an oath - so for my purposes the "J" is fine with me. Just as an "A" is fine for the acknowledgement.....and for both of them it's a given that they appeared before me....no need for a checkbox for "oath" or "personal appearance"...

JMO

Reply by HisHughness on 6/8/11 3:50pm
Msg #385554

You are being picky, and thankfully, you're not a judge...

...I will ever have to appear before, because I would probably be quite explicit in <my> opinion about that opinion.

***I would question whether a little "J" in a journal is sufficient proof that an oath was administered.***

This particular gnat is a ridiculous one to strain, in my opinion. Inherent in a jurat is an oath: If you have not sworn the party, then you have not completed a jurat -- and I think it was Robert himself who made that very point in this very thread. Thus, when you indicate you signed a jurat, you are simultaneously indicating that you administered an oath -- and it doesn't matter whether it is a "little J" or a great big honking grandiose ostentatious pretentious flamboyant showy flashy "Look at me! I'm huge!" J.

Let us not, by creating needless complexities, try to settle upon this signing agent/notary public/notario publico/stamp wielder thingy more stature than it either needs or deserves.

Reply by FlaNotary2 on 6/8/11 6:23pm
Msg #385576

Re: You are being picky, and thankfully, you're not a judge

Well based on the responses in this thread it is apparent that many notaries do not administer an oath when it is requires. Knowing this, as a judge I would tend to question the sufficiency of notarized oaths presented in my courtroom. Whether the J is small or large, a "J" to me would not even be sufficient proof that a jurat was signed, let alone that an oath was administered.

And as for your last comment, if you don't respect the position with which you have been entrusted maybe you should get lost.

JMHO

Reply by JanetK_CA on 6/8/11 7:14pm
Msg #385581

Re: You are being picky, and thankfully, you're not a judge

Seems to me that the issue is not what is written in the journal (or to be more precise, how the oath/jurat was recorded), but who put it there and what is their standard procedure. If it was an "O" instead of a "J", that wouldn't provide any more certainty that an oath was administered, imo, or any less.

And to be fair, Robert, I didn't see anywhere where Hugh said that he didn't respect the office of Notary Public. My understanding is that he's just saying that it shouldn't be elevated beyond the respect it's due. I think there's lots of room in between his claim and yours.

Reply by MikeC/NY on 6/8/11 8:27pm
Msg #385591

Re: You are being picky, and thankfully, you're not a judge

Hugh is absolutely right - implicit in a jurat is the administration of an oath; it's ridiculous to assert that since the notary didn't make a distinction in the journal between the type of certificate and the actual administration of the oath, there is no sufficient proof that an oath was actually administered.

It doesn't matter if you tick off a little "J" in the journal or write a 500 word essay about the event, you CANNOT prove you administered an oath unless you have witnesses willing to swear to it or video of you actually doing it. Any judge who tosses notarized documents based on your criteria is probably going to find most of those cases reversed on appeal...

Reply by Larry/IL on 6/8/11 7:34am
Msg #385458

Upon letting Borrower/s know that I am a neutral 3rd party, and Public Official, I always try to start with an I.D. or Name / Sig. Aff., just before the HUD. I show them the wording "sworn and subscribed before me", and explain I will need to swear them in.

More times then not I get a "I have never had to do this before" response. Almost always it helps to take control of the meeting, especially when they think it's ok to get up for the dogs, the kids, dinner or the phone. Many,....not all, realize what they are doing is important, as they should. Usually they also pay better attention to those signatures and dating clarity, which is a big help.

Every additional aff., (requiring an oath), I remind them they are still under oath, unless they are still IMO not committing themselves 100% to the meeting. Then I swear them in again. Usually after the second time, they get serious and give their full attention. Really does keep signings on track.

Reply by MonicaFL on 6/8/11 8:12am
Msg #385464

Well, I ALWAYS have the borrowers take an oath and here is the wording that I use: Do you (and their names) swear that you are the person(s) expediting these loan documents and that the information you have provided is true and correct to the best of your knowledge and belief, so help you God? (Only one time did I ever have a person tell me they did not "swear" but will affirm and in that case I add - instead of so help you God, - Do you Affirm ... and at the end I state under penalty of perjury). Never had a problem with this. I also have printed out and attached to my journal a printout of both the swearing and affirming so that I don't "fumble" around for the right wording. I also check the "oath" box on my journal. Just my own thoughts on this subject.

Reply by Linda_H/FL on 6/8/11 8:17am
Msg #385465

"You swear these statements are true to the best of your knowledge and belief"

"You acknowledge signing this document and it is your free act and deed"

Reply by 101livescan on 6/8/11 8:54am
Msg #385466

You never know when you're going to be called up to take the witness stand, or be deposed, "did you administer the oath when you witnessed/notarized these affidavits for Mr. and Mrs. Jones?" An affidavit requires an oath or sworn statement ALWAYS! Very few loan transaction documents have no affidavits, so why not adminster the oath/affirmation in the very beginning of the signing? Seems like a simple, legal precaution, even if there is no affidavit in the package.

Reply by HisHughness on 6/8/11 9:32am
Msg #385470

Failure to administer an oath when required is grounds for revocation of your commission in Texas.

Reply by Stephanie Santiago on 6/8/11 10:15am
Msg #385478

Dennis - I'm pleased to see that someone else

takes this seriously.Mine goes like this:
Do you swear under penalty of perjury that everything is true...
The signer has their hand up and says yes.

Reply by MW/VA on 6/8/11 2:17pm
Msg #385541

I now administer an oath for loan signings, but it's because

of what I've learned here. I can tell you that no one who did a signing on my property used an oath. Also, notaries at the mail box stores don't know to do it either. IMO it is a common oversight. I also don't remember it in any of my training (NNA, etc.).
Once again, I'm grateful for this forum, the experienced contributors, and for the wealth of info I learn from here on a daily basis. Thanks all! :>)

Reply by Cari on 6/10/11 4:36pm
Msg #385821

ditto MW...ditto... n/m

Reply by nobhill on 6/8/11 2:52pm
Msg #385547

Re: Common That Notaries Don't Issue Oath

Most all my customers in Northern California tell me a notary has never placed them under oath. I once had a partner attorney at a big law firm complain to me I placed her under oath. I've witnessed at least two very experienced long-term notaries not issue me an oath. This leads me to believe notaries disregard the law to issue the oath. I don't know why notaries are violating the law and think it quite odd.

Reply by BrendaTx on 6/8/11 9:45pm
Msg #385598

"Under oath"

I have seen this bantered around tonight about "swearing in" and "placing under oath".

The swear and affirm is an oath, but an acknowledgement does not require an oath, right?

I ask for the person to acknowledge their signature and that they placed it for the purposes stated in the document.

I don't swear in. I administer an oath or take an acknowledgment. We' re not in a courtroom. We are notarizing documents and as such, we offer a verbal ceremony.

Reply by BrendaTx on 6/8/11 9:45pm
Msg #385599

Re: "Under oath" correction

We do not offer a verbal ceremony. We perform one.

Reply by FlaNotary2 on 6/9/11 5:48am
Msg #385619

"administering an oath" and "swearing in" are

interchangeable IMO.

"Swear" is just the verb for "oath".

Reply by Jodith/WA on 6/8/11 8:37pm
Msg #385595

I have a check off list that I use when I do loan signings, one item of which is performing the oath. That way, if anyone ever asks, I can say, "Why, yes, I did perform that oath."

Reply by HARRY_PA on 6/9/11 9:34am
Msg #385629

I have had the pleasure to administer the oath of office both to military and state employees in this great Commonwealth of Pennsylvania. If I remember a notary public swore Lyndon Johnson in after John Kennedy's assassination.

Harry

Reply by FlaNotary2 on 6/9/11 9:36am
Msg #385630

No, only Calvin Coolidge was sworn in by a notary public

and, despite all the hype the NNA gives about it, there was widespread belief that a notary could not administer the presidential oath, and Coolidge was sworn in a second time, by a judge, when he returned to Washington.

LBJ was also sworn in by a supreme court justice on board Air Force 1.

Reply by HisHughness on 6/9/11 10:18am
Msg #385636

Re: No, only Calvin Coolidge was sworn in by a notary public

LBJ was sworn in by Sarah T. Hughes, a federal district judge in the Dallas area.

Hughes was a well-known figure in Texas judicial circles, since she was the first female district judge in Texas history. She also is the only female ever to swear in a president, a fact that perhaps can be attributed to women's aversion to men swearing at them.

Hughes was appointed by Gov. James Allred to her state district judgeship for her first term. I had sort of a "six degrees of separation" association with Allred. In the '60s, I worked with his son, Dave, on the San Antonio Express-News.

The son was not a journalist by trade. I don't recall what he was doing before he came to work for the Express-News, but whatever it was, it wasn't journalism. I know that because it was not until his first day at work that the editor discovered that Allred could not type. He had been through the entire interview process, and nobody every asked him that simple but pivotal question. A journalist who cannot type is much like a TV weatherman who can't point: It's just an essential skill.

Allred did not last very long at the newspaper.

Reply by Cari on 6/10/11 4:06pm
Msg #385815

in Illinois that little 'whups' doesn't invalidate the

notarization...